Exhibit 4.1
EXECUTION COPY
INDENTURE
by and among
HARNISCHFEGER INDUSTRIES, INC.
(TO BE RENAMED JOY GLOBAL INC.),
as Issuer,
THE GUARANTORS NAMED HEREIN
and
BNY MIDWEST TRUST COMPANY
as Trustee
Dated as of July 10, 2001
Up to $167,000,000
10.75% SENIOR NOTES DUE 2006
TABLE OF CONTENTS*
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ARTICLE 1
DEFINITIONS............................................................................. 1
SECTION 1.1 Definitions.............................................................. 1
ARTICLE 2
SENIOR NOTES............................................................................ 16
SECTION 2.1 Forms Generally............................................................ 16
SECTION 2.2 Form of Trustee's Certificate of Authentication............................ 16
SECTION 2.3 Title; Terms; Registrar and Paying Agent................................... 17
SECTION 2.4 Authentication and Dating.................................................. 18
SECTION 2.5 Date and Denomination of Senior Notes...................................... 18
SECTION 2.6 Execution of Senior Notes.................................................. 19
SECTION 2.7 Exchange and Registration of Transfer of Senior Notes...................... 19
SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Senior Notes.......................... 20
SECTION 2.9 Temporary Senior Notes..................................................... 21
SECTION 2.10 Cancellation of Senior Notes Paid, etc..................................... 21
SECTION 2.11 Global Notes............................................................... 21
SECTION 2.12 CUSIP Numbers.............................................................. 22
ARTICLE 3
PARTICULAR COVENANTS OF THE CORPORATION................................................. 22
SECTION 3.1 Payment of Principal, Premium and Interest................................. 22
SECTION 3.2 Offices for Notices and Payments, etc...................................... 23
SECTION 3.3 Appointments to Fill Vacancies in Trustee's Office......................... 23
SECTION 3.4 Provision as to Paying Agent............................................... 23
SECTION 3.5 Certificate to Trustee..................................................... 24
SECTION 3.6 Compliance with Consolidation Provisions................................... 24
SECTION 3.7 Liens...................................................................... 24
SECTION 3.8 Sale and Leaseback Transactions............................................ 24
SECTION 3.9 Restricted Payments........................................................ 24
SECTION 3.10 Dividend and Other Payment Restrictions Affecting Subsidiaries............. 27
SECTION 3.11 Incurrence of Indebtedness................................................. 28
SECTION 3.12 Asset Sales................................................................ 30
SECTION 3.13 Transactions with Affiliates............................................... 31
SECTION 3.14 Offer to Repurchase Upon Change of Control................................. 32
SECTION 3.15 Designation of Restricted and Unrestricted Subsidiaries.................... 34
SECTION 3.16 Additional Senior Subsidiary Guarantees.................................... 34
SECTION 3.17 Notice of Default.......................................................... 34
SECTION 3.18 Conduct of Business........................................................ 34
SECTION 3.19 Limitation of Ownership of Capital Stock of Certain Restricted
Subsidiaries............................................................... 34
SECTION 3.20 Limitation on Layered Indebtedness......................................... 34
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* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
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ARTICLE 4
HOLDERS' LISTS AND REPORTS BY THE CORPORATION AND THE TRUSTEE........................ 35
SECTION 4.1 Holders' Lists............................................................. 35
SECTION 4.2 Preservation and Disclosure of Lists....................................... 35
SECTION 4.3 Reports by Corporation..................................................... 36
SECTION 4.4 Reports by the Trustee..................................................... 37
ARTICLE 5
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT.............................. 37
SECTION 5.1 Events of Default.......................................................... 37
SECTION 5.2 Payment of Senior Notes on Default; Suit Therefor.......................... 39
SECTION 5.3 Application of Moneys Collected by Trustee................................. 40
SECTION 5.4 Proceedings by Holders..................................................... 40
SECTION 5.5 Proceedings by Trustee..................................................... 40
SECTION 5.6 Remedies Cumulative and Continuing......................................... 41
SECTION 5.7 Direction of Proceedings and Waiver of Defaults by Majority of Holders..... 41
SECTION 5.8 Notice of Defaults......................................................... 41
SECTION 5.9 Undertaking to Pay Costs................................................... 42
ARTICLE 6
CONCERNING THE TRUSTEE............................................................... 42
SECTION 6.1 Duties and Responsibilities of Trustee..................................... 42
SECTION 6.2 Reliance on Documents, Opinions, etc....................................... 43
SECTION 6.3 No Responsibility for Recitals, etc........................................ 44
SECTION 6.4 Trustee, Authenticating Agent, Certain Others May Own Senior Notes......... 44
SECTION 6.5 Moneys to be Held in Trust................................................. 44
SECTION 6.6 Compensation and Expenses of Trustee....................................... 45
SECTION 6.7 Officers' Certificate as Evidence.......................................... 45
SECTION 6.8 Conflicting Interest of Trustee............................................ 45
SECTION 6.9 Eligibility of Trustee..................................................... 46
SECTION 6.10 Resignation or Removal of Trustee.......................................... 46
SECTION 6.11 Acceptance by Successor Trustee............................................ 47
SECTION 6.12 Succession by Merger, etc.................................................. 47
SECTION 6.13 Limitation on Rights of Trustee as a Creditor.............................. 48
SECTION 6.14 Authenticating Agents...................................................... 48
ARTICLE 7
CONCERNING THE HOLDERS............................................................... 49
SECTION 7.1 Action by Holders.......................................................... 49
SECTION 7.2 Proof of Execution by Holders.............................................. 49
SECTION 7.3 Who Are Deemed Absolute Owners............................................. 49
SECTION 7.4 Senior Notes Owned by Corporation Deemed Not Outstanding................... 50
SECTION 7.5 Revocation of Consents; Future Holders Bound............................... 50
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ARTICLE 8
HOLDERS' MEETINGS...................................................................... 50
SECTION 8.1 Purposes of Meetings....................................................... 50
SECTION 8.2 Call of Meetings by Trustee................................................ 51
SECTION 8.3 Call of Meetings by Corporation or Holders................................. 51
SECTION 8.4 Qualifications for Voting.................................................. 51
SECTION 8.5 Regulations................................................................ 51
SECTION 8.6 Voting..................................................................... 52
ARTICLE 9
SUPPLEMENTAL INDENTURES................................................................ 52
SECTION 9.1 Supplemental Indentures without Consent of Holders......................... 52
SECTION 9.2 Supplemental Indentures with Consent of Holders............................ 53
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Indentures..... 54
SECTION 9.4 Notation on Senior Notes................................................... 54
SECTION 9.5 Evidence of Compliance of Supplemental Indenture to be Furnished Trustee... 54
ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE...................................... 54
SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms........................ 54
SECTION 10.2 Successor Corporation to be Substituted for Corporation.................... 55
SECTION 10.3 Opinion of Counsel to be Given Trustee..................................... 55
ARTICLE 11
SATISFACTION AND DISCHARGE............................................................. 55
SECTION 11.1 Discharge of Indenture and Senior Subsidiary Guarantees.................... 55
SECTION 11.2 Deposited Moneys and U.S. Government Obligations Held in Trust............. 56
SECTION 11.3 Paying Agent to Repay Moneys Held.......................................... 56
SECTION 11.4 Return of Unclaimed Moneys................................................. 56
SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government Obligations........... 57
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS......................... 58
SECTION 12.1 Indenture and Senior Notes Solely Corporate Obligations.................... 58
ARTICLE 13
MISCELLANEOUS PROVISIONS............................................................... 58
SECTION 13.1 Successors................................................................. 58
SECTION 13.2 Official Acts by Successor Corporation..................................... 59
SECTION 13.3 Surrender of Corporation Powers............................................ 59
SECTION 13.4 Addresses for Notices, etc................................................. 59
SECTION 13.5 Governing Law.............................................................. 59
SECTION 13.6 Evidence of Compliance with Conditions Precedent........................... 59
SECTION 13.7 Legal Holidays............................................................. 60
SECTION 13.8 Trust Indenture Act to Control............................................. 60
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SECTION 13.9 Table of Contents, Headings, etc........................................... 60
SECTION 13.10 Execution in Counterparts.................................................. 60
SECTION 13.11 Separability............................................................... 60
SECTION 13.12 Assignment................................................................. 60
ARTICLE 14
REDEMPTION OF SENIOR NOTES............................................................. 61
SECTION 14.1 Applicability of Article................................................... 61
SECTION 14.2 Optional Redemption........................................................ 61
SECTION 14.3 Election to Redeem; Notice to Trustee...................................... 61
SECTION 14.4 Selection by Trustee of Senior Notes to Be Redeemed........................ 61
SECTION 14.5 Notice of Redemption....................................................... 61
SECTION 14.6 Deposit of Redemption Price................................................ 62
SECTION 14.7 Senior Notes Payable on Redemption Date.................................... 62
SECTION 14.8 Senior Notes Redeemed in Part.............................................. 62
SECTION 14.9 Offer to Purchase by Application of Excess Proceeds........................ 63
ARTICLE 15
SENIOR SUBSIDIARY GUARANTEES........................................................... 64
SECTION 15.1 Guarantee.................................................................. 64
SECTION 15.2 Limitation on Guarantor Liability.......................................... 65
SECTION 15.3 Execution and Delivery of Senior Subsidiary Guarantee...................... 65
SECTION 15.4 Guarantors May Consolidate on Certain Terms................................ 66
SECTION 15.5 Releases Following Sale of Assets.......................................... 66
EXHIBIT A -- Form of Senior Note
EXHIBIT B -- Form of Notation of Senior Subsidiary Guarantee
EXHIBIT C -- Form of Supplemental Indenture To Be Delivered by Subsequent
Guarantors
Schedule I -- Schedule of Guarantors
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CROSS-REFERENCE TABLE
of provisions of the Trust Indenture Act to the provisions of the Indenture,
dated as of July 10, 2001 by and among Harnischfeger Industries, Inc. (to be
renamed Joy Global Inc.), the Guarantors identified on Schedule I attached
hereto and BNY Midwest Trust Company, as Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1).................................................. 6.9
310(a)(2).................................................. 6.9
310(a)(3).................................................. N/A
310(a)(4).................................................. N/A
310(b)..................................................... 6.8; 6.10
310(c)..................................................... N/A
311(a)..................................................... 6.13
311(b)..................................................... 6.13
311(c)..................................................... N/A
312(a)..................................................... 4.1; 4.2(a)
312(b)..................................................... 4.2(b); 4.2(c)
312[ ]..................................................... 4.2(b); 4.2(c)
313(a)..................................................... 4.4(a)
313(b)(1).................................................. N/A
313(b)(2).................................................. 4.4(b); 4.4(e)
313(c)..................................................... 4.4(c); 4.4(e)
313(d)..................................................... 4.4(d); 4.4(e)
314(a)..................................................... 4.3
314(b)..................................................... N/A
314(c)(1).................................................. 13.6
314(c)(2).................................................. 13.6
314(c)(3).................................................. N/A
314(d)..................................................... N/A
314(e)..................................................... 13.6
314(f)..................................................... N/A
315(a)..................................................... 6.1
315(b)..................................................... 5.8
315(c)..................................................... 6.1
315(d)..................................................... 6.1
315(e)..................................................... 5.9
316(a)(1).................................................. 5.7; 13.8(b)
316(a)(2).................................................. Omitted
316(a) last sentence....................................... 7.4
316(b)..................................................... 5.4
317(a)..................................................... 5.2
317(b)..................................................... 3.4(a)
318(a)..................................................... 13.8
THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE AS EXECUTED.
THIS INDENTURE, dated as of July 10, 2001, by and among Harnischfeger
Industries, Inc. (to be renamed Joy Global Inc.), a Delaware corporation
(hereinafter sometimes called the "Corporation"), the Guarantors identified on
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Schedule I attached hereto (collectively, the "Guarantors"), and BNY Midwest
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Trust Company, an Illinois banking corporation, as trustee (hereinafter
sometimes called the "Trustee"),
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W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Corporation has duly
authorized the issuance of its 10.75% Senior Notes Due 2006 (the "Senior Notes")
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and, to provide the terms and conditions upon which the Senior Notes are to be
authenticated, issued and delivered, the Corporation and the Guarantors have
duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms have been done and performed;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the premises, the Corporation and the Guarantors
covenant and agree with the Trustee for the equal and proportionate benefit of
the respective Holders from time to time of the Senior Notes as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
The terms defined in this Section 1.1 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.1. All other terms used in this Indenture
which are defined in the Trust Indenture Act, as amended (the "Trust Indenture
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Act"), or which are by reference therein defined in the Securities Act of 1933,
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as amended (the "Securities Act"), shall (except as herein otherwise expressly
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provided or unless the context otherwise requires) have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture as originally executed. All accounting terms used
herein and not expressly defined shall have the meanings assigned to such terms
in accordance with GAAP. 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.
"Acquired Debt" means, with respect to any specified Person (i)
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Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, whether or
not such Indebtedness is incurred in connection with, or in contemplation of,
such other Person merging with or into, or becoming a Subsidiary of, such
specified Person; and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Affiliate" means, with respect to a specified Person, any other Person
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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 specified 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.
"Affiliate Transaction" shall have the meaning given to such term in
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Section 3.13.
"Agent" means any Registrar, Paying Agent or co-registrar.
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"Asset Sale" means: (i) the sale, lease, conveyance or other disposition
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of any assets or rights, other than sales of inventory in the ordinary course of
business; provided that the sale, conveyance or other disposition of all or
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substantially all of the assets of the Corporation and its Restricted
Subsidiaries taken as a whole shall be governed by the provisions of Section
3.14 hereof and not by the provisions of Section 3.12 hereof; and (ii) the
issuance of Equity Interests by any of the Corporation's Restricted Subsidiaries
or the sale of Equity Interests in any of the Corporation's Subsidiaries.
Notwithstanding the foregoing, the following items shall not be deemed to be
Asset Sales: (i) any single transaction or series of related transactions that
involves assets having a fair market value of less than $1 million; (ii) a
transfer of assets between or among the Corporation and its Wholly Owned
Restricted Subsidiaries; (iii) an issuance of Equity Interests by a Wholly Owned
Restricted Subsidiary to the Corporation or to another Wholly Owned Restricted
Subsidiary; (iv) the licensing of intellectual property in the ordinary course
of business; (v) disposals or replacements of obsolete, uneconomical,
negligible, worn-out or surplus property in the ordinary course of business;
(vi) the sale or other disposition of cash or Cash Equivalents or Marketable
Securities; (vii) sales of accounts receivables and related assets of the type
specified in the definition of "Qualified Receivables Transaction" to a
Receivables Subsidiary for the fair market value thereof, including cash or Cash
Equivalents or Marketable Securities in an amount at least equal to 75% of the
fair market value thereof as determined in accordance with GAAP; (viii) a
Permitted Investment involving businesses or assets outside of the United
States; (ix) a Restricted Payment that is permitted under Section 3.9 hereof; or
(x) Third-Party Financing Transactions.
"Asset Sale Offer" shall have the meaning given to such term in Section
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14.9.
"Attributable Debt" in respect of a sale and leaseback transaction means,
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at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such
sale and leaseback transaction, including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Authenticating Agent" means any agent or agents of the Trustee which at
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the time shall be appointed and acting pursuant to Section 6.14.
"Bank Credit Facility" means, with respect to the Corporation or its
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Restricted Subsidiaries, one or more credit facilities, commercial paper or
letter of credit facilities in the bank credit market (which may include
customary institutional investor participation) or receivables financings
(including through the sale of receivables to lenders or to special purpose
entities formed to borrow from lenders against such receivables), in each case,
as amended, restated, modified, renewed, refunded, replaced or refinanced in the
bank credit market or receivables financing market, as the case may be, in whole
or in part from time to time.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state
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law for the relief of debtors.
"Board of Directors" means the Board of Directors or the Executive
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Committee or any other duly authorized committee of the Board of Directors of
the Corporation.
"Board Resolution" means, with respect to the Corporation, a copy of a
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resolution certified by the Secretary or an Assistant Secretary to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification and, with respect to any Guarantor, a copy of a
resolution certified by the Secretary or an Assistant Secretary or a similar
officer, partner or manager of such Guarantor, to have been duly adopted by the
board
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of directors (or other similar governing body) of such Guarantor and to be in
full force and effect on the date of such certification.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
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which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means, at the time of any determination thereof
------------------------
is to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock;
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(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock; (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited); and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) United States dollars; (ii) securities issued
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or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof (provided that the full faith and credit
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of the United States is pledged in support thereof) having maturities of not
more than six months from the date of acquisition; (iii) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding twelve months
and overnight bank deposits, in each case with any lender under the Bank Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better; (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above; (v) commercial paper having a rating of at least A1 or P-1 from
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Rating Services and in each
case maturing within twelve months after the date of acquisition; and (vi) money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (i) through (v) of this definition.
"Certificate" means a certificate signed by the principal executive
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officer, the principal financial officer or the principal accounting officer of
the Corporation.
"Certificate of Authentication" means the certificate issued by the Trustee
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or the Authenticating Agent as to the form of Senior Note issued under the
Indenture.
"Change of Control" means the occurrence of one or more of the following
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events:
(a) any Person or Group (other than a Person which is an Initial Holder or
an Affiliate of an Initial Holder or a Group which includes one or more Initial
Holders or Affiliates of one or more Initial Holders) is or becomes the
"beneficial owner," directly or indirectly, in the aggregate of at least a
majority of the total voting power of the Voting Stock of the Corporation
(including a Surviving Entity, if applicable), whether by virtue of the
issuance, sale or other disposition of Capital Stock by the Corporation or a
direct or indirect holder of Capital Stock of the Corporation, a merger or
consolidation involving the Corporation or such Person or Group, a sale of all
or substantially all of its assets by the Corporation or such Person or Group,
or otherwise; or
(b) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Corporation
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Corporation was either
(i) approved by a vote of a majority of the directors of the Corporation then
still in office who were either directors at the beginning of such
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period or whose election or nomination for election was previously so approved
or (ii) made by an Initial Holder or an Affiliate of an Initial Holder) cease
for any reason to constitute a majority of the Board of Directors of the
Corporation then in office; or
(c) the approval by the holders of Capital Stock of the Corporation of any
plan or proposal for the liquidation or dissolution of the Corporation, whether
or not otherwise in compliance with the provisions of the Indenture; or
(d) the Corporation consolidates with, or merges with or into, another
Person, or the Corporation sells, conveys, assigns, transfers, leases or
otherwise disposes of all or substantially all of the assets of the Corporation,
determined on a consolidated basis, to any Person, other than a transaction
where immediately after such transaction the Person or Persons that
"beneficially owned" immediately prior to such transaction a majority of the
total then outstanding Voting Stock of the Corporation "beneficially own",
directly or indirectly, a majority of the total voting power of the then
outstanding Voting Stock of the Surviving Entity; or
(e) the Corporation directly or indirectly sells, conveys, assigns,
transfers, leases or otherwise disposes of all or substantially all of the
Capital Stock, assets and/or operations of the underground mining equipment
business of Joy Technologies Inc. (d/b/a/ Joy Mining Machinery) and its
Subsidiaries, or any successor entity thereto, and/or the surface mining
equipment business of Harnischfeger Corporation (d/b/a/ P&H Mining Equipment)
and its Subsidiaries, or any successor entity thereto, other than to the
Corporation or a Restricted Subsidiary.
For purposes of this definition:
(i) "beneficial owner" shall have the meaning specified in Rules 13d-3
and 13d-5 under the Exchange Act, except that any Person or Group shall be
deemed to have "beneficial ownership" of all securities that such Person or
has the right to acquire, whether such right is exercisable immediately,
only after the passage of time or upon the occurrence of a subsequent
condition; and
(ii) "Person" and "Group" shall have the meanings for "person" and
"group" as used in Sections 13(d) and 14(d) of the Exchange Act.
"Change of Control Offer" shall have the meaning given to such term in
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Section 3.14.
"Change of Control Payment" shall have the meaning given to such term in
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Section 3.14.
"Change of Control Payment Date" shall have the meaning given to such term
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in Section 3.14.
"Commission" means the Securities and Exchange Commission, as from time to
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time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Consolidated EBITDA" of the Corporation means, for any period, the sum
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(without duplication) of the Corporation's (i) Consolidated Net Income and (ii),
to the extent Consolidated Net Income has been reduced thereby, (A) taxes based
on income or profits (and all foreign withholding taxes) of the Corporation and
its Restricted Subsidiaries paid or accrued in accordance with GAAP for such
period, (B) Consolidated Interest Expense and (C) Consolidated Noncash Charges,
less (x) all non-cash credits and gains increasing Consolidated Net Income for
such period (other than the accrual of revenue) and (y) all cash payments during
such period relating to non-cash charges that were added back in determining
Consolidated EBITDA in any prior period.
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"Consolidated Interest Expense" of the Corporation means, for any period,
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the sum, without duplication and determined on a consolidated basis in
accordance with GAAP, of: (i) the aggregate of cash and non-cash interest
expense of the Corporation and its Restricted Subsidiaries, including, without
limitation (whether or not interest expense in accordance with GAAP): (a) any
amortization or accretion of debt discount or any interest paid on Indebtedness
of the Corporation in the form of additional Indebtedness, (b) any amortization
of deferred financing costs, (c) the net costs under Hedging Obligations
(including amortization of fees), (d) all capitalized interest, (e) the interest
portion of any deferred payment obligation, (f) commissions, discounts and other
fees and charges incurred in respect of letters of credit or bankers'
acceptances, and (g) any interest expense on Indebtedness of another Person that
is Guaranteed by the Corporation or one of its Restricted Subsidiaries or
secured by a Lien on the assets of the Corporation or one of its Restricted
Subsidiaries (whether or not such Guarantee or Lien is called upon); (ii) the
interest component of Capital Lease Obligations paid, accrued and/or scheduled
to be paid or accrued by the Corporation and its Restricted Subsidiaries during
such period and (iii) the product of (1) the amount of all cash and non-cash
dividend payments on any series of preferred stock or Disqualified Capital Stock
(other than dividends paid in Qualified Capital Stock or paid, accrued or
scheduled to be paid or accrued to the Corporation or a Restricted Subsidiary)
paid, accrued or scheduled to be paid or accrued during such period times (2) a
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fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated U.S. federal, state and local tax
rate of the Corporation, expressed as a decimal.
"Consolidated Net Income" of the Corporation means, for any period, the sum
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of (i) the aggregate net income (or loss) of the Corporation and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP and (ii) Fresh Start Charges for such period; provided that there
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shall be excluded from aggregate net income (or loss) (a) gains and losses from
Asset Sales (without regard to the $1 million limitation set forth in the
definition thereof) or abandonments or reserves relating thereto and the related
tax effects according to GAAP, (b) gains and losses due solely to fluctuations
in currency values and the related tax effects according to GAAP, (c) items
classified as a cumulative effect accounting change or as extraordinary gains
and losses, and the related tax effects according to GAAP, (d) the net income of
any Restricted Subsidiary of the Corporation to the extent that the declaration
of dividends or similar distributions by that Restricted Subsidiary of the
Corporation of that income is prohibited by contract, operation of law or
otherwise, excluding for purposes of this clause (d), in the case of the
calculation of the EBITDA Coverage Ratio only, limitations under credit
facilities, indentures or other contracts relating to Permitted Debt incurred or
outstanding under clause (d) of Section 3.11, (e) the net income of any Person
other than a Restricted Subsidiary of the Corporation, except to the extent of
cash dividends or distributions paid to the Corporation or a Restricted
Subsidiary of the Corporation by such Person, (f) any increase or decrease in
net income attributable to minority interests in any Restricted Subsidiary, and
(g) for purposes of calculating Consolidated Net Income pursuant to clause
(d)(iii)(1) of Section 3.9 only, (A) the net income of any Person acquired in a
"pooling of interests" transaction accrued prior to the date it becomes a
Restricted Subsidiary or is merged or consolidated with the Corporation or any
Restricted Subsidiary and (B) any earnings of a Surviving Entity (other than the
Corporation) prior to assuming the Corporation's obligations under this
Indenture and the Senior Notes pursuant to Section 10.1.
"Consolidated Noncash Charges" of the Corporation means, for any period,
----------------------------
the aggregate depreciation, amortization and other non-cash expenses of the
Corporation and its Restricted Subsidiaries reducing Consolidated Net Income of
the Corporation for such period (excluding Fresh Start Charges) determined on a
consolidated basis in accordance with GAAP, but excluding any such non-cash
charge which requires an accrual of or a reserve for cash charges for any future
period.
"Corporation" means Harnischfeger Industries, Inc. (to be renamed Joy
-----------
Global Inc.), a Delaware corporation, and, subject to the provisions of Article
Ten, shall include its successors and assigns.
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
---------
official under any Bankruptcy Law.
5
"Default" means any event, act or condition that with notice or lapse of
-------
time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the meaning given to such term in Section
------------------
2.5.
"Defeasance Agent" shall have the meaning given to such term in Section
----------------
11.5(c).
"Depository Institution" means, with respect to Senior Notes which the
----------------------
Corporation shall determine will be issued as Global Notes, The Depository Trust
Company, New York, New York, The Philadelphia Depository Trust Company,
Philadelphia, Pennsylvania, another clearing agency, or any successor registered
as a clearing agency under the Exchange Act, or other applicable statute or
regulation, which, in each case, shall be designated by the Corporation pursuant
to either Section 2.3 or Section 2.11.
"Discharged" shall have the meaning given to such term in Section 11.5(b).
----------
"Disqualified Capital Stock" means that portion of any Capital Stock which,
--------------------------
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable at the option of the holder thereof), or matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the sole option of the holder thereof, in any case, on or
prior to the 91st day after the Stated Maturity of the Senior Notes.
"Domestic Subsidiary" means a Subsidiary that is (i) formed under the laws
-------------------
of the United States of America or a state or territory thereof or (ii) as of
the date of determination, treated as a domestic entity or a partnership or a
division of a domestic entity for United States federal income tax purposes.
"EBITDA Coverage Ratio" of the Corporation means, for any period, the ratio
---------------------
of the Consolidated EBITDA of the Corporation for such period to the
Consolidated Interest Expense of the Corporation for such period. In the event
that the Corporation or any of its Restricted Subsidiaries incurs, assumes,
guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary
working capital borrowings) subsequent to the commencement of the period for
which the EBITDA Coverage Ratio is being calculated and on or prior to the date
on which the event for which the calculation of the EBITDA Coverage Ratio is
made (the "Calculation Date"), then the EBITDA Coverage Ratio shall be
----------------
calculated giving pro forma effect to such incurrence, assumption, guarantee,
repayment, repurchase or redemption of Indebtedness, and the use of the proceeds
therefrom as if the same had occurred at the beginning of the applicable four-
quarter reference period. In addition, for purposes of calculating the EBITDA
Coverage Ratio: (i) acquisitions or dispositions outside the ordinary course of
business that have been made by the Corporation or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions or designations of Restricted Subsidiaries or
Unrestricted Subsidiaries, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be given pro forma effect as if they had occurred on the first day of the
four-quarter reference period and Consolidated EBITDA for such reference period
shall be calculated on a pro forma basis in accordance with Regulation S-X under
the Securities Act; (ii) the Consolidated EBITDA attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded; and (iii) the
Consolidated Interest Expense attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Consolidated Interest Expense will not be
obligations of the Corporation or any of its Restricted Subsidiaries following
the Calculation Date.
"Effective Date" shall have the meaning given to such term in the Plan.
--------------
6
"Equity Interests" means Capital Stock and all warrants, options or other
----------------
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
"Event of Default" means any event specified in Section 5.1, continued for
----------------
the period of time, if any, and after the giving of the notice, if any, therein
designated.
"Excess Proceeds" shall have the meaning given to such term in Section
---------------
3.12.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Excluded Subsidiary" means any Subsidiary of the Corporation which is not
-------------------
a Domestic Subsidiary.
"Existing Indebtedness" means Indebtedness of the Corporation and its
---------------------
Subsidiaries (other than Indebtedness under any Bank Credit Facility,
Indebtedness of any Excluded Subsidiary (other than Indebtedness incurred or
outstanding under Section 3.11(d)) or any Indebtedness which meets the
requirements of clause (g), (h), (k) or (l) of the definition of Permitted Debt)
in existence on the Issue Date, until such amounts are repaid.
"Fresh Start Changes" means, for any period, the aggregate non-cash charges
-------------------
of the Corporation and its Restricted Subsidiaries arising from the application
of fresh start accounting principles, determined on a consolidated basis in
accordance with GAAP.
"GAAP" means United States generally accepted accounting principles
----
consistently applied and maintained throughout the period indicated and
consistent with the prior financial practices of the Corporation except for (i)
changes mandated by the Financial Accounting Standards Board or any similar
accounting authority of comparable standing and (ii) changes to any such
principles deemed by the Corporation to be preferable and the use of which has
been approved by the Corporation's independent certified public accountants.
"Global Notes" means, with respect to any of the Senior Notes, a Senior
------------
Note executed by the Corporation and delivered by the Trustee to the Depository
Institution or pursuant to the Depository Institution's instruction, all in
accordance with this Indenture, which shall be registered in the name of the
applicable Depository Institution or its nominee.
"Guarantee" means a direct or indirect guarantee of all or any part of any
---------
Indebtedness (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), including without limitation by way of a
pledge of assets, through letters of credit or reimbursement agreements in
respect of such Indebtedness or through keep-well agreements in respect of such
Indebtedness, agreements to maintain financial statement conditions or
agreements to purchase or pay such Indebtedness.
"Guarantors" means (i) each Restricted Subsidiary that is or becomes a
----------
Domestic Subsidiary of the Corporation (other than (A) a Receivables Subsidiary
and (B) Industries Insurance, Inc., a Vermont insurance company); and (ii) any
other Subsidiary that executes a Senior Subsidiary Guarantee in accordance with
the provisions of this Indenture.
"Hedging Obligations" means, with respect to any specified Person, the
-------------------
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; and (ii) similar
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
7
"Holder," "Holder of Senior Notes," or other similar terms, means any
------ ----------------------
person in whose name at the time a particular Senior Note is registered on the
Senior Note Register in accordance with the terms hereof.
"Indebtedness" means, with respect to any specified Person, any
------------
indebtedness of such Person, whether or not contingent, in respect of: (i)
borrowed money; (ii) evidenced by bonds, notes, debentures or similar
instruments or outstanding letters of credit (or reimbursement agreements in
respect thereof); (iii) banker's acceptances; (iv) representing Capital Lease
Obligations; (v) the deferred balance of the purchase price of any property
acquired outside of the ordinary course of business which remains unpaid, except
any such balance that constitutes an operating lease payment, accrued expense,
trade payable or similar current liability not overdue by more than 90 days;
(vi) any Hedging Obligations or Other Hedging Agreements; (vii) all Indebtedness
of others secured by a Lien on any asset of the specified Person (whether or not
such Indebtedness is assumed by the specified Person) and, to the extent not
otherwise included, the Guarantee by the specified Person of any Indebtedness of
any other Person; and (viii) all Disqualified Capital Stock issued by such
Person with the amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any; provided, that: (a) if the Disqualified Capital Stock does
--------
not have a fixed repurchase price, such maximum fixed repurchase price shall be
calculated in accordance with the terms of the Disqualified Capital Stock as if
the Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and (b) if the
maximum fixed repurchase price is based upon, or measured by, the fair market
value of the Disqualified Capital Stock, the fair market value shall be the fair
market value thereof. The amount of any Indebtedness outstanding as of any date
shall be (i) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount, and (ii) the principal amount thereof in the case
of any other Indebtedness.
"Indenture" means this instrument as originally executed or, if amended or
---------
supplemented as herein provided, as so amended or supplemented, or both, and
shall include the form and terms of the Senior Notes established as contemplated
hereunder.
"Independent Financial Advisor" means an accounting firm, appraisal firm,
-----------------------------
investment banking firm or consultant of nationally recognized standing that is,
in the judgment of the Corporation's Board of Directors, qualified to perform
the task for which it has been engaged and which is independent in connection
with the relevant transaction.
"Initial Holder" means any Person which is the "beneficial owner", directly
--------------
or indirectly, in the aggregate of at least 5% of the total voting power of the
Voting Stock of the Corporation upon the Effective Date.
"Interest Payment Date" means the Stated Maturity of an installment of
---------------------
interest on the Senior Notes.
"Investments" means, with respect to any Person, all direct or indirect
-----------
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including guarantees or other obligations), advances or capital
contributions, purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Corporation or any of its Subsidiaries sells or
otherwise disposes of any Equity Interests of any direct or indirect Subsidiary
of the Corporation such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Corporation, the
Corporation shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Subsidiary not sold or disposed of in an amount determined as provided in
the final paragraph of Section 3.9 hereof. The acquisition by the Corporation
or any Subsidiary of the Corporation of a Person that holds an Investment in a
third Person shall be deemed to be an Investment by the Corporation or such
Subsidiary in such third Person in an amount equal to the fair market value of
the Investment held by the acquired Person in such third Person in an amount
determined as provided in the final paragraph of Section 3.9 hereof.
8
"Issue Date" means the date of initial issuance of the Senior Notes.
----------
"Lien" means any lien, mortgage, pledge, security, interest, charges or
----
encumbrance of any kind (including any conditional sale or other title retention
agreement and any lease in the nature thereof).
"Marketable Securities" means publicly traded debt or equity securities
---------------------
that are listed for trading on a national securities exchange and that were
issued by a corporation whose debt securities are rated in one of the three
highest rating categories by either Standard & Poor's Rating Services or ▇▇▇▇▇'▇
Investors Service, Inc.
"Net Proceeds" means the aggregate cash proceeds received by the
------------
Corporation or any Restricted Subsidiary of the Corporation in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale), net
of the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, sales commissions, any relocation
expenses incurred as a result thereof, all taxes of any kind paid or payable as
a result thereof and reasonable reserves established to cover any indemnity
obligations incurred in connection therewith, in each case, after taking into
account any available tax credits or deductions and any tax sharing
arrangements, and amounts required to be applied to the repayment of
Indebtedness, other than Indebtedness under a Bank Credit Facility, Indebtedness
secured by a Lien on the asset or assets that were the subject of such Asset
Sale and any reserve for adjustment in respect of the sale price of such asset
or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
-----------------
Corporation nor any Restricted Subsidiary of the Corporation (A) provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness), (B) is directly or indirectly liable as a
guarantor or otherwise, or (C) constitutes the lender; (ii) no default with
respect to which would permit upon notice, lapse of time or both any holder of
any other Indebtedness (other than the Senior Notes) of the Corporation or any
Restricted Subsidiary of the Corporation to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Corporation.
"Note Custodian" means the Trustee, as custodian with respect to the Senior
--------------
Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
-----------
indemnifications, expenses, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness
"Offer Amount" shall have the meaning given to such term in Section 14.9.
------------
"Offer Period" shall have the meaning given to such term in Section 14.9.
------------
"Officers' Certificate" means, with respect to the Corporation or any
---------------------
Guarantor, a certificate signed by the Chairman of the Board, the President or
any Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary or
a similar officer, partner or manager of such Person and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 13.6 if and to the extent provided by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
------------------
experienced in the matters as to which such opinion is being delivered, who may
be an employee of or counsel to the Corporation, or may be other counsel
reasonably satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.6 if and to the extent required by the
provisions of such Section.
9
"Other Hedging Agreements" means any foreign exchange contracts, currency
------------------------
swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
The term "outstanding" (except as otherwise provided in Section 7.1), when
-----------
used with reference to Senior Notes, shall, subject to the provisions of Section
7.4, mean, as of any particular time, all Senior Notes authenticated and
delivered by the Trustee or the Authenticating Agent under this Indenture,
except
(a) Senior Notes theretofore canceled by the Trustee or the Authenticating
Agent or delivered to the Trustee for cancellation;
(b) Senior Notes, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Corporation) or shall have been
set aside and segregated in trust by the Corporation (if the Corporation shall
act as its own paying agent); provided that, if such Senior Notes, or portions
--------
thereof, are to be redeemed prior to maturity thereof, notice of such redemption
shall have been given as in Article Fourteen provided or provision satisfactory
to the Trustee shall have been made for giving such notice; and
(c) Senior Notes paid pursuant to Section 2.8 or Senior Notes in lieu of or
in substitution for which other Senior Notes shall have been authenticated and
delivered pursuant to the terms of Section 2.8 unless proof satisfactory to the
Corporation and the Trustee is presented that any such Senior Notes are held by
bona fide holders in due course.
"Paying Agent" shall have the meaning given to such term in Section 2.3.
------------
"Permitted Debt" shall have the meaning given to such term in Section 3.11.
--------------
"Permitted Debt Percentage" means a fraction (i) the numerator of which is
-------------------------
$25 million and (ii) the denominator of which is the Total Net Tangible Assets
of the Corporation on the Effective Date.
"Permitted Investments" means: (i) any Investment in the Corporation or in
---------------------
a Restricted Subsidiary of the Corporation; (ii) any Investment in Cash
Equivalents; (iii) any Investment by the Corporation or any Restricted
Subsidiary of the Corporation in a Person, if as a result of such Investment (A)
such Person becomes a Restricted Subsidiary of the Corporation or (B) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the
Corporation or a Restricted Subsidiary of the Corporation; (iv) any Investment
made as a result of the receipt of non-cash consideration from an Asset Sale
that was made pursuant to and in compliance with Section 3.12 hereof; (v) any
acquisition of assets to the extent acquired in exchange for the issuance of
Equity Interests of the Corporation (other than Disqualified Stock); (vi)
Hedging Obligations and Other Hedging Agreements; (vii) any Investment existing
on the Issue Date; (viii) loans and advances to employees and officers of the
Corporation and its Restricted Subsidiaries in the ordinary course of business;
(ix) any Investment in securities of trade creditors or customers received in
compromise of obligations of such persons incurred in the ordinary course of
business, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers; (x) negotiable instruments held for deposit or collection in the
ordinary course of business; (xi) loans, guarantees of loans and advances to
officers, directors, employees or consultants of the Corporation or a Restricted
Subsidiary of the Corporation not to exceed $3.5 million in the aggregate
outstanding at any time; (xii) any Investment by the Corporation or any
Restricted Subsidiary of the Corporation in a Receivables Subsidiary or any
Investment by a Receivables Subsidiary in any other Person in connection with a
Qualified Receivables Transaction; provided that each such Investment is in the
--------
form of a Purchase Money Note, an equity interest or interests in accounts
receivables generated by the Corporation or any Restricted Subsidiary of the
Corporation customary in connection with Qualified Receivables Transactions;
10
and (xiii) other Investments in any Person having an aggregate fair market value
(measured on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (xiii) that are at the time outstanding (measured
on the date each such Investment was made and without giving effect to
subsequent changes in value) not to exceed the greater of $40 million and the
Permitted Investments Percentage of Total Net Tangible Assets.
"Permitted Investments Percentage" means a fraction (i) the numerator of
--------------------------------
which is $40 million and (ii) the denominator of which is the Total Net Tangible
Assets of the Corporation on the Effective Date.
"Permitted Liens" means: (i) Liens on assets (including, without
---------------
limitation, the capital stock of a Subsidiary) of the Corporation or any
Subsidiary to secure Indebtedness under any Bank Credit Facility; (ii) Liens on
the assets of the Corporation or any Subsidiary to secure Hedging Obligations
and Other Hedging Agreements with respect to Indebtedness to any lender under
any Bank Credit Facility on assets which secure such Bank Credit Facility; (iii)
Liens on property of a Person existing at the time such Person is acquired by,
merged into or consolidated with the Corporation or any Subsidiary of the
Corporation; provided that such Liens were in existence prior to the
--------
contemplation of such acquisition, merger or consolidation and do not extend to
any assets other than those of the Person acquired by, merged into or
consolidated with the Corporation; (iv) Liens on property existing at the time
of acquisition thereof by the Corporation or any Subsidiary of the Corporation;
provided that such Liens were in existence prior to the contemplation of such
--------
acquisition and only extend to the property so acquired; (v) Liens existing on
the Issue Date; (vi) Liens in favor of the Corporation or any Subsidiary of the
Corporation; (vii) Liens to secure Indebtedness incurred by the Corporation or
any of its Subsidiaries, including all Indebtedness incurred to refund,
refinance or replace any other Indebtedness incurred pursuant to this clause
(vii), in an aggregate principal amount (or accreted value, as applicable) at
any time outstanding not to exceed $50 million; (viii) Liens to secure the
performance of statutory obligations, surety or appeal bonds, performance bonds,
deposits to secure the performance of bids, trade contracts, government
contracts, leases or licenses or other obligations of a like nature incurred in
the ordinary course of business (including, without limitation, landlord Liens
on leased properties); (ix) Liens for taxes, assessments or governmental charges
or claims that are not yet delinquent or that are being contested in good faith
by appropriate proceedings; provided that any reserve or other appropriate
--------
provision as shall be required to conform with GAAP shall have been made
therefor; (x) Liens represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case incurred for the purpose
of financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business of the
Corporation or any Subsidiary, in an aggregate principal amount, including all
indebtedness incurred to refund, refinance or replace Indebtedness incurred
pursuant to this clause (x), not to exceed $25 million, covering only the assets
acquired with such Indebtedness; (xi) Liens securing Indebtedness of Excluded
Subsidiaries incurred in reliance on clause (d) of Section 3.11; (xii)
carriers', warehousemen's, mechanics', landlords' materialmen's, repairmen's or
other like Liens arising in the ordinary course of business in respect of
obligations not overdue for a period in excess of 60 days or which are being
contested in good faith by appropriate proceedings promptly instituted and
diligently prosecuted; provided that any reserve or other appropriate provision
--------
as shall be required to conform with GAAP shall have been made therefor; (xiii)
easements, rights-of-way, zoning and similar restrictions 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 any case materially
detract from the value of the property subject thereto or do not interfere with
or adversely affect in any material respect the ordinary conduct of the business
of the Corporation and its Subsidiaries taken as a whole; (xiv) Liens in favor
of customs and revenue authorities to secure payment of customs duties in
connection with the importation of goods in the ordinary course of business and
other similar Liens arising in the ordinary course of business; (xv) leases or
subleases granted to third Persons not interfering with the ordinary course of
business of the Corporation or any of its Subsidiaries; (xvi) Liens (other than
any Lien imposed by ERISA or any rule or regulation promulgated thereunder)
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance, and other types of social
security; (xvii) deposits made in the ordinary course of business to secure
liability to insurance carriers; (xviii) any interest or title of a lessor or
sublessor under any operating lease; (xix) Liens securing Permitted Refinancing
Indebtedness incurred under clause (f) of the second paragraph of
11
Section 3.11 hereof in order to refinance the Indebtedness secured by Liens
existing on the Issue Date; provided that the Liens securing the Permitted
--------
Refinancing Indebtedness shall not extend to property other than that pledged
under the Liens securing the Indebtedness being refinanced; (xx) Liens on assets
of a Receivables Subsidiary incurred in connection with a Qualified Receivables
Transaction; (xxi) Liens under licensing agreements for use of intellectual
property entered into in the ordinary course of business; and (xxii) Liens on
property of the Corporation or any Restricted Subsidiary to secure partial,
progress, advance or other payments or any indebtedness incurred for the purpose
of financing all or any part of the purchase price or the cost of construction,
development, or substantial repair, alteration or improvement of such property.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
----------------------------------
Corporation or any Restricted Subsidiary of the Corporation issued in exchange
for, or the Net Proceeds of which are used to extend, refinance, renew, replace,
defease or refund other Indebtedness of the Corporation or any Restricted
Subsidiary of the Corporation (including, without limitation, all Permitted Debt
(other than Permitted Debt that is intercompany Indebtedness and other than
Indebtedness under any Bank Credit Facility)); provided that: (i) the principal
--------
amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus all accrued interest thereon and the amount of all
expenses and premiums incurred in connection therewith; (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Senior Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Senior Notes on terms at least
as favorable to the Holders of Senior Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Corporation or by the Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Plan" means the Corporation's Third Amended and Restated Joint Plan of
----
Reorganization under Chapter 11 of the U.S. Bankruptcy Code.
"Predecessor Senior Note" of any particular Senior Note means every
-----------------------
previous Senior Note evidencing all or a portion of the same debt as that
evidenced by such particular Senior Note; and, for the purposes of this
definition, any Senior Note authenticated and delivered under Section 2.8 in
lieu of a lost, mutilated, destroyed or stolen Senior Note shall be deemed to
evidence the same debt as the lost, mutilated, destroyed or stolen Senior Note.
"Principal Office of the Trustee," or other similar term, means the
-------------------------------
designated office of the Trustee, at which at any particular time its corporate
trust business shall be administered.
"Purchase Date" shall have the meaning given to such term in Section 14.9.
-------------
"Purchase Money Note" means a promissory note evidencing a line of credit,
-------------------
which may be irrevocable, from, or evidencing other Indebtedness owed to, the
Corporation or any Restricted Subsidiary of the Corporation in connection with a
Qualified Receivables Transaction, which note shall be repaid from cash
available to the maker of such note, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables.
12
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
-----------------------
Capital Stock.
"Qualified Receivables Transaction" means any transaction or series of
---------------------------------
transactions that may be entered into by the Corporation or any Restricted
Subsidiary of the Corporation pursuant to which the Corporation or any
Restricted Subsidiary of the Corporation may sell, convey or otherwise transfer
to (i) a Receivables Subsidiary (in the case of a transfer by the Corporation or
any Restricted Subsidiary of the Corporation), and (ii) any other Person (in the
case of a transfer by a Receivables Subsidiary), or may grant a security
interest in, any accounts receivable (whether now existing or arising in the
future) of the Corporation or any Restricted Subsidiary of the Corporation, and
any assets related thereto including, without limitation, all collateral
securing such accounts receivable, all contracts and all guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets that are customarily transferred, or in respect of
which security interests are customarily granted, in connection with asset
securitization transactions involving accounts receivable.
"Receivables Subsidiary" means a Wholly Owned Subsidiary of the Corporation
----------------------
that engages in no activities other than in connection with the financing of
accounts receivable and that is designated by the Board of Directors of the
Corporation (as provided below) as a Receivables Subsidiary and (i) has no
Indebtedness or other Obligations (contingent or otherwise) that (A) are
guaranteed by the Corporation or any Restricted Subsidiary of the Corporation,
other than contingent liabilities pursuant to Standard Securitization
Undertakings, (B) are recourse to or obligate the Corporation or any Restricted
Subsidiary of the Corporation in any way other than pursuant to Standard
Securitization Undertakings or (C) subjects any property or asset of the
Corporation or any Restricted Subsidiary of the Corporation, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings; (ii) has no contract,
agreement, arrangement or undertaking (except in connection with Purchase Money
Note or Qualified Receivables Transaction) with the Corporation or its
Restricted Subsidiaries other than on terms no less favorable to the Corporation
or such Restricted Subsidiaries than those that might be obtained at the time
from Persons that are not Affiliates of the Corporation, other than fees payable
in the ordinary course of business in connection with servicing accounts
receivable; and (iii) neither the Corporation nor any Restricted Subsidiary of
the Corporation has any obligation to maintain or preserve the Receivables
Subsidiary's financial condition or cause the Receivables Subsidiary to achieve
certain levels of operating results.
Any such designation by the Board of Directors of the Corporation shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Corporation giving effect to such
designation and an Officers' Certificate certifying, to the best of such
officer's knowledge and belief after consulting with counsel, that such
designation complied with the foregoing conditions.
"Redemption Date," when used with respect to any Senior Note to be
---------------
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Senior Note to be
----------------
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrar" shall have the meaning given to such term in Section 2.3.
---------
"Regular Record Date" for the interest payable on any Interest Payment Date
-------------------
means the April 15th or October 15th, as the case may be, next preceding
such Interest Payment Date.
"Responsible Officer" means, with respect to the Trustee, any officer
-------------------
within the corporate trust office of the Trustee, including any vice-president,
any assistant vice-president, any assistant secretary, any assistant treasurer
or other officer of the corporate trust office of the Trustee customarily
performing functions similar to those performed by any
13
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Restricted Investment" means an Investment other than a Permitted
---------------------
Investment.
"Restricted Payment" shall have the meaning given to such term in Section
------------------
3.9.
"Restricted Subsidiary" of a Person means any Subsidiary of the referenced
---------------------
Person that is not an Unrestricted Subsidiary.
"Senior Note" or "Senior Notes" shall have the meaning stated in the first
----------- ------------
recital of this Indenture and more particularly means any note or notes, as the
case may be, authenticated and delivered under this Indenture.
"Senior Note Register" shall have the meaning given to such term in Section
--------------------
2.7.
"Senior Subsidiary Guarantee" means the Guarantee of the Senior Notes by
---------------------------
each of the Guarantors pursuant to Article Fifteen hereof and in the form of
Guarantee endorsed on the form of Senior Note attached as Exhibit A hereto and
any additional Guarantee of the Senior Notes to be executed by any Subsidiary of
the Corporation pursuant to Section 3.16.
"Significant Subsidiary" means any Subsidiary that would be a "significant
----------------------
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
-------------------
date fixed by the Trustee pursuant to Section 2.5.
"Standard Securitization Undertakings" means representations, warranties,
------------------------------------
covenants and indemnities entered into by the Corporation or any Restricted
Subsidiary of the Corporation that are reasonably customary in an accounts
receivable transaction.
"Stated Maturity," when used with respect to any Senior Note or any
---------------
installment of interest thereon, means the date specified in such Senior Note as
the fixed date on which the principal of such Senior Note or such installment of
interest is due and payable.
"Subsidiary" means with respect to any Person, (i) any corporation at least
----------
a majority of whose outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition, "voting
stock" means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
"Surviving Entity" shall have the meaning given to such term in Section
----------------
10.1.
"Third-Party Financing Transaction" means any transaction or series of
---------------------------------
transactions pursuant to which (i) the Corporation or any Restricted Subsidiary
of the Corporation enters into an agreement (the "Agreement") to provide a
14
customer (the "Customer") with the use of or services relating to certain
specified machinery or equipment (the "Equipment") and (ii) a Person which is
not an Affiliate of the Corporation takes title to the Equipment as a condition
of providing the Customer with financing assistance relating to the Agreement.
"Total Net Tangible Assets" means the total consolidated assets of the
-------------------------
Corporation and its Restricted Subsidiaries, as set forth on the Corporation's
most recent consolidated balance sheet as of the end of a fiscal quarter, less
the following: (i) current liabilities of the Corporation and its Restricted
Subsidiaries, (ii) goodwill, unamortized debt issuance costs and original issue
discount expense and other unamortized deferred charges, patents, trademarks,
service marks, trade names, copyrights, licenses, organization or development
expenses and other intangible items set forth on such balance sheet, (iii) all
outstanding Investments by the Corporation and its Restricted Subsidiaries in
Persons other than Restricted Subsidiaries, and (iv) net deferred income tax
assets of the Corporation and its Restricted Subsidiaries. For purposes of this
Indenture, Total Net Tangible Assets on the Effective Date shall be determined
by the Company from its audited consolidated balance sheet as of the Effective
Date and publicly announced by the Company as soon as reasonably practicable
following the time when such audited consolidated balance sheet is publicly
disclosed.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in force at
-------------------
the date of execution of this Indenture, except as provided in Section 9.3.
"Trustee" means the Person identified as "Trustee" in the first paragraph
-------
hereof, and, subject to the provisions of Article Six hereof, shall also include
its successors and assigns as Trustee hereunder.
"Unrestricted Subsidiary" means, with respect to the Corporation, any
-----------------------
Subsidiary of the Corporation that is designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a Board Resolution (and any Subsidiary
thereof), but only to the extent that such Subsidiary: (i) has no Indebtedness
other than Non-Recourse Debt; (ii) is not party to any agreement, contract,
arrangement or understanding with the Corporation or any Restricted Subsidiary
of the Corporation unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Corporation or such Restricted
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Corporation; (iii) is a Person with respect to which
neither the Corporation nor any Restricted Subsidiary of the Corporation has any
direct or indirect obligation (A) to subscribe for additional Equity Interests
or (B) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results; and (iv) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Corporation or any Restricted Subsidiary of the
Corporation. Any designation of a Subsidiary of the Corporation as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted under Section 3.9
hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Corporation as of such date. The Board of Directors of the
Corporation may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation shall be deemed to be an
--------
incurrence of Indebtedness by a Restricted Subsidiary of the Corporation of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (x) such Indebtedness is permitted under Section 3.11
hereof, calculated on a pro forma basis as if such designation had occurred at
the beginning of the four-quarter reference period and (y) no Default or Event
of Default would be in existence following such designation.
"U.S. Government Obligations" means securities that are (i) direct
---------------------------
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally
15
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case under clauses (i) or (ii) are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
--------
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" means, with respect to any Person, securities of any class
------------
of Capital Stock of such Person entitling the holders thereof (whether at all
times or only so long as no senior class of stock has voting power by reason of
any contingency) to vote in the election of members of the board of directors
(or similar governing body) of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
---------------------------------
at any date, the number of years obtained by dividing: (i) the sum of the
products obtained by multiplying (A) the amount of each then remaining
installment or other required payments of principal, including payment at final
maturity, in respect thereof, by (B) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such
payment, by (ii) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any specified Person means any
----------------------------------
Wholly Owned Subsidiary of such Person which at the time of determination is a
Restricted Subsidiary.
"Wholly Owned Subsidiary" of any specified Person means a Subsidiary of
-----------------------
such Person all of the outstanding Capital Stock or other ownership interests of
which shall at the time be owned by such Person and/or by one or more Wholly
Owned Subsidiary of such Person.
ARTICLE 2
SENIOR NOTES
SECTION 2.1 Forms Generally.
The Senior Notes shall be in substantially the form of Exhibit A hereto,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any law or with any rules made
pursuant thereto or with any rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Senior
Notes, as evidenced by their execution of the Senior Notes.
The definitive Senior Notes shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Senior Notes may be listed, all as
determined by the officers executing such Senior Notes, as evidenced by their
execution of such Senior Notes.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Senior Notes shall be in
substantially the following form:
16
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
BNY MIDWEST TRUST COMPANY
as Trustee
By: _______________________________________
Authorized Signatory
SECTION 2.3 Title; Terms; Registrar and Paying Agent.
The Senior Notes may be issued only pursuant to the terms and conditions
contained in the Plan. The aggregate principal amount of Senior Notes which may
be authenticated and delivered under this Indenture is limited to $167,000,000,
except for Senior Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Senior Notes pursuant to
Sections 2.7, 2.8, 2.9, 9.4 or 14.8.
The Senior Notes shall be known and designated as the "10.75% Senior Notes
Due 2006" of the Corporation. Their Stated Maturity shall be April 30, 2006,
and they shall bear interest at the rate of 10.75% per annum, from the Effective
Date or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, payable semi-annually on April
30/th/ and October 31/st/, commencing October 31, 2001, until the principal
thereof is paid or made available for payment. Interest shall be calculated on
the basis of a 360-day year of twelve 30-day months. Any Senior Notes issued
after the Effective Date shall be accompanied by (i) the right to receive on the
next Interest Payment Date accrued interest from the Effective Date (or, in the
case of a Senior Note which is issued after one or more Interest Payment Dates,
the most recent Interest Payment Date) to the date of issuance (whether or not
such Senior Note is outstanding on the Regular Record Date applicable to such
Interest Payment Date) and (ii) in the case of any Senior Note which is issued
after one or more Interest Payment Dates, cash equal to the amount of interest
which would have been payable on such Senior Note if it had been outstanding on
such Interest Payment Date(s). Notwithstanding clause (i) of the previous
sentence, (x) any Senior Note issued in the interval between a Regular Record
Date and the applicable Interest Payment Date shall be accompanied by a cash
payment equal to the amount of interest which would have been payable on such
Senior Note on the applicable Interest Payment Date had such Senior Note been
outstanding on such Regular Record Date and (y) the Holder of such Senior Note
shall not be entitled to receive any interest payment on such Interest Payment
Date.
The Senior Notes shall be redeemable as provided in Article Fourteen.
The Corporation shall maintain an office or agency where Senior Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
---------
office or agency where Senior Notes may be presented for payment ("Paying
------
Agent"). The Corporation may appoint one or more co-registrars and one or more
-----
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Corporation
may change any Paying Agent or Registrar without notice to any Holder. The
Corporation shall notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture. If the Corporation fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Corporation or any of its Subsidiaries may act as Paying Agent or
Registrar.
The Corporation initially appoints The Depository Trust Company ("DTC") to
---
act as Depository Institution with respect to any Global Notes.
The Corporation initially appoints the Trustee to act as Registrar and
Paying Agent and to act as Note Custodian with respect to any Global Notes.
17
The Trustee is authorized to enter into a letter of representations with
DTC in the form provided to the Trustee by the Corporation and to act in
accordance with such letter.
Prior to the initial issuance of the Senior Notes, there shall be
established in or pursuant to a Board Resolution of the Corporation and set
forth in an Officers' Certificate of the Corporation or established in one or
more supplemental indentures hereto: (i) whether any Senior Notes shall be
issued in whole or in part in the form of one or more Global Notes and, in such
case, the Depository Institution for such Global Notes (if other than DTC), and
whether beneficial owners of interests in any such Global Notes may exchange
such interests for other Senior Notes in the manner provided in Section 2.7, and
the manner and the circumstances under which and the place or places where any
such exchanges may occur if other than in the manner provided in Section 2.7,
and any other terms relating to the global nature of the Global Notes and the
exchange, registration or transfer thereof and the payment of any principal
thereof, or interest or premium, if any, thereon; and (ii) any other terms of
the Senior Notes (which shall not be inconsistent with the provisions of this
Indenture).
SECTION 2.4 Authentication and Dating.
Upon the execution and delivery of this Indenture, or from time to time
thereafter, the Senior Notes may be executed and delivered by the Corporation,
in an aggregate principal amount of not more than $167,000,000, to the Trustee
for authentication and specifying the amount of Senior Notes to be
authenticated, the applicable rate at which interest will accrue on such Senior
Notes, the date on which the original issue of such Senior Notes is to be
authenticated, the date from which interest will begin to accrue, the date or
dates on which interest on such Senior Notes will be payable and the date on
which the principal of such Senior Notes will be payable and other terms
relating to such Notes. The Trustee shall thereupon authenticate and deliver
said Senior Notes to or upon the written order of the Corporation (as set forth
in a duly executed Officers' Certificate) signed by authorized officers of the
Corporation.
The Trustee shall have the right to decline to authenticate and deliver any
Senior Notes under this Section 2.4 if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or vice presidents shall determine that
such action would expose the Trustee to personal liability to existing Holders.
SECTION 2.5 Date and Denomination of Senior Notes.
The Senior Notes shall be issuable as registered Senior Notes without
coupons and in denominations of $1,000 and any multiple thereof. The Senior
Notes shall be numbered, lettered, or otherwise distinguished in such manner or
in accordance with such plans as the officers of the Corporation executing the
same may determine with the approval of the Trustee as evidenced by the
execution and authentication thereof.
Every Senior Note shall be dated the date of its authentication, shall bear
interest from such date and shall be payable on such dates, in each case, as
contemplated by Section 2.3. The interest installment on any Senior 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 such Senior Note (or one or more
Predecessor Senior Notes) is registered at the close of business on the Regular
Record Date for such interest installment. In the event that any Senior Note or
portion thereof is called for redemption and the Redemption Date is subsequent
to a Regular Record Date with respect to any Interest Payment Date and prior to
such Interest Payment Date, interest on such Senior Note will be paid upon
presentation and surrender of such Senior Note as provided in Section 3.1.
Any interest on any Senior 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 Holder on the relevant
--------
18
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest shall be paid by the Corporation, at its election, as provided in
clause (a) or clause (b) below:
(a) The Corporation may make payment of any Defaulted Interest on Senior
Notes to the Persons in whose names such Senior Notes (or their respective
Predecessor Senior 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 Corporation shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Senior Note and
the date of the proposed payment, and at the same time the Corporation 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 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 in this clause
provided. Thereupon the Trustee shall fix a special record date (the "Special
-------
Record Date") for the payment of such Defaulted Interest which shall not be 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 Corporation of such Special
Record Date and, in the name and at the expense of the Corporation, 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 his
or her address as it appears in the Senior Note Register (as hereinafter
defined), 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 mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Senior Notes (or their respective Predecessor Senior
Notes) are registered on such Special Record Date and shall be no longer payable
pursuant to the following clause (b).
(b) The Corporation may make payment of any Defaulted Interest on any
Senior Notes in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Senior Notes may be listed, and upon
such notice as may be required by such exchange, if, after notice given by the
Corporation to the Trustees of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.5, each Senior Note
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Senior Note shall carry the rights to interest accrued and unpaid, and
to accrue, that were carried by such other Senior Note.
SECTION 2.6 Execution of Senior Notes.
The Senior Notes shall be signed in the name and on behalf of the
Corporation by the manual or facsimile signature of its Chairman of the Board of
Directors, President or one of its Vice Presidents, by facsimile or otherwise,
and which need not be attested. Only such Senior Notes as shall bear thereon a
Certificate of Authentication substantially in the form hereinbefore recited,
executed by the Trustee or the Authenticating Agent, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee or the Authenticating Agent upon any Senior Note
executed by the Corporation shall be conclusive evidence that the Senior Note so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
In case any officer of the Corporation who shall have signed any of the
Senior Notes shall cease to be such officer before the Senior Notes so signed
shall have been authenticated and delivered by the Trustee or the Authenticating
Agent, or disposed of by the Corporation, such Senior Notes nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Senior Notes had not ceased to be such officer of the Corporation; and any
Senior Note may be signed on behalf of the Corporation by such persons as, at
the actual date of the execution of such Senior Note, shall be the proper
officers of the Corporation, although at the date of the execution of this
Indenture any such person was not such an officer.
19
SECTION 2.7 Exchange and Registration of Transfer of Senior Notes.
At the option of the Holder, Senior Notes may be exchanged for other Senior
Notes of any authorized denominations and for a like aggregate principal amount.
Senior Notes to be exchanged may be surrendered at the Principal Office of the
Trustee or at any office or agency to be maintained by the Corporation for such
purpose as provided in Section 3.2, and the Corporation or the Trustee shall
execute and register and the Trustee or the Authenticating Agent shall
authenticate and deliver in exchange therefor the Senior Note or Senior Notes
which the Holder making the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Senior Note at the Principal
Office of the Trustee or at any office or agency of the Corporation maintained
for such purpose as provided in Section 3.2, the Corporation or the Trustee
shall execute and register and the Trustee or the Authenticating Agent shall
authenticate and deliver in the name of the transferee or transferees a new
Senior Note or Senior Notes for a like aggregate principal amount. Registration
or registration of transfer of any Senior Note by the Trustee or by any agent of
the Corporation appointed pursuant to Section 3.2, and delivery of such Senior
Note, shall be deemed to complete the registration or registration of transfer
of such Senior Note.
The Corporation or the Trustee shall keep, at the Principal Office of the
Trustee, a register (the "Senior Note Register") in which, subject to such
--------------------
reasonable regulations as it may prescribe, the Corporation or the Trustee shall
register all Senior Notes and shall register the transfer of all Senior Notes as
in this Article Two provided. Such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time.
All Senior Notes presented for registration of transfer or for exchange or
payment shall (if so required by the Corporation or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation
and the Trustee or the Authenticating Agent duly executed by, the Holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Senior Notes, but the Corporation or the Trustee may require payment
of a sum sufficient to cover any tax, fee or other governmental charge that may
be imposed in connection therewith.
The Corporation or the Trustee shall not be required to exchange or
register a transfer of (a) any Senior Note for a period of 15 days next
preceding the mailing of a notice of redemption of Senior Notes for redemption,
or (b) any Senior Notes selected, called or being called for redemption in whole
or in part, except in the case of any Senior Notes to be redeemed in part, the
portion thereof not so to be redeemed.
SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Senior Notes.
In case any temporary or definitive Senior Note shall become mutilated or
be destroyed, lost or stolen, the Corporation shall execute, and upon its
request the Trustee shall authenticate and deliver, a new Senior Note of like
tenor and amount bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Senior Note, or in lieu of and in
substitution for the Senior Note so destroyed, lost or stolen. In every case
the applicant for a substituted Senior Note shall furnish to the Corporation and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Corporation and the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Senior Note and of
the ownership thereof.
The Trustee may authenticate any such substituted Senior Note and deliver
the same upon the written request or authorization of any officer of the
Corporation. Upon the issuance of any substituted Senior Note, the Corporation
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 connected therewith. If any Senior Note which has matured or is about
to mature
20
or has been called for redemption in full shall become mutilated or be
destroyed, lost or stolen, the Corporation may, instead of issuing a substitute
Senior Note, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Senior Note) if the applicant for such payment
shall furnish to the Corporation and the Trustee such security or indemnity as
may be required by them to save each of them harmless and, in case of
destruction, loss or theft, evidence satisfactory to the Corporation and to the
Trustee of the destruction, loss or theft of such Senior Note and of the
ownership thereof.
Every substituted Senior Note issued pursuant to the provisions of this
Section 2.8 by virtue of the fact that any such Senior Note is destroyed, lost
or stolen shall constitute an additional contractual obligation of the
Corporation, whether or not the destroyed, lost or stolen Senior Note shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Senior Notes duly issued
hereunder. All Senior Notes shall be held and owned upon the express condition
that, to the extent permitted by applicable law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Senior Notes and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 2.9 Temporary Senior Notes.
Pending the preparation of definitive Senior Notes, the Corporation may
execute and the Trustee shall authenticate and deliver temporary Senior Notes
(printed or lithographed). Temporary Senior Notes shall be issuable in any
authorized denomination, and substantially in the form of the definitive Senior
Notes but with such omissions, insertions and variations as may be appropriate
for temporary Senior Notes, all as may be determined by the Corporation. Every
such temporary Senior Note shall be executed by the Corporation and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive Senior Notes. Without
unreasonable delay the Corporation will execute and deliver to the Trustee or
the Authenticating Agent definitive Senior Notes and thereupon any or all
temporary Senior Notes may be surrendered in exchange therefor, at the Principal
Office of the Trustee or at any office or agency maintained by the Corporation
for such purpose as provided in Section 3.2, and the Trustee or the
Authenticating Agent shall authenticate and deliver in exchange for such
temporary Senior Notes a like aggregate principal amount of such definitive
Senior Notes. Such exchange shall be made by the Corporation at its own expense
and without any charge therefor except that in case of any such exchange
involving a registration of transfer the Corporation may require payment of a
sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Senior Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Senior Notes authenticated and delivered hereunder.
SECTION 2.10 Cancellation of Senior Notes Paid, etc.
All Senior Notes surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Corporation
or any Paying Agent, be surrendered to the Trustee and promptly canceled by it,
or, if surrendered to the Trustee or any Authenticating Agent, shall be promptly
canceled by it, and no Senior Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. All Senior
Notes canceled by any Authenticating Agent shall be delivered to the Trustee.
The Trustee shall dispose of canceled Senior Notes in accordance with its
customary procedures. If the Corporation shall acquire any of the Senior Notes,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Senior Notes unless and until the same are
surrendered to the Trustee for cancellation.
SECTION 2.11 Global Notes.
21
(a) If the Corporation shall establish pursuant to Section 2.3 that the
Senior Notes are to be issued as Global Notes, then the Corporation shall
execute and the Trustee shall, in accordance with Section 2.4, authenticate and
deliver, Global Notes that (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the outstanding Senior
Notes, (ii) shall be registered in the name of the Depository Institution or its
nominee, (iii) shall be delivered by the Trustee to the Depository Institution
or pursuant to the Depository Institution's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Senior Note may be transferred, in whole but
not in part, only to another nominee of the Depository Institution or to a
successor Depository Institution or to a nominee of such successor Depository
Institution."
(b) Notwithstanding the provisions of Section 2.7, the Global Notes may be
transferred, in whole but not in part and in the manner provided in Section 2.7,
only to another nominee of the Depository Institution for such series or to a
successor Depository Institution for such Senior Notes selected or approved by
the Corporation or to a nominee of such successor Depository Institution.
(c) If at any time the Depository Institution for the Global Notes notifies
the Corporation that it is unwilling or unable to continue as Depository
Institution for such Global Notes or if at any time the Depository Institution
for such Global Notes shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a successor
Depository Institution for such Global Notes is not appointed by the Corporation
within 90 days after the Corporation receives such notice or becomes aware of
such condition, as the case may be, this Section 2.11 shall no longer be
applicable to the Senior Notes and the Corporation will execute, and subject to
Section 2.7, the Trustee will authenticate and deliver, the Senior Notes in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global Notes
in exchange for such Global Notes. In addition, the Corporation may at any time
determine that the Senior Notes shall no longer be represented by the Global
Notes and that the provisions of this Section 2.11 shall no longer apply to the
Senior Notes. In such event the Corporation will execute and, subject to Section
2.7, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Corporation, will authenticate and deliver the Senior Notes
in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Notes in exchange for such Global Notes. Upon the exchange of the Global Notes
for such Senior Notes in definitive registered form without coupons, in
authorized denominations, the Global Notes shall be canceled by the Trustee.
Such Senior Notes in definitive registered form issued in exchange for the
Global Notes pursuant to this Section 2.11(c) shall be registered in such names
and in such authorized denominations as the Depository Institution, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Senior Notes to the
Depository Institution for delivery to the Persons in whose names such Senior
Notes are so registered.
SECTION 2.12 CUSIP Numbers.
The Corporation in issuing the Senior Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
--------
may state that no representation is made as to the correctness of such numbers
either as printed on the Senior Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Senior Notes, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Corporation will
promptly notify the Trustee of any change in the "CUSIP" numbers.
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ARTICLE 3
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 3.1 Payment of Principal, Premium and Interest.
The Corporation shall pay or cause to be paid the principal of, premium, if
any, and interest on the Senior Notes on the dates and in the manner provided in
such Senior Notes. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Corporation or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Corporation in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
SECTION 3.2 Offices for Notices and Payments, etc.
So long as any of the Senior Notes remains outstanding, the Corporation
will designate and maintain in New York, New York an office or agency where the
Senior Notes may be presented for payment, for registration of transfer and/or
for exchange as provided in this Indenture and where notices and demands to or
upon the Corporation in respect of the Senior Notes or of this Indenture may be
served. The Corporation will give to the Trustee notice of the location of any
such office or agency and of any change of location thereof. If the Corporation
shall fail to maintain any such office or agency in New York, New York or shall
fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Principal Office of the Trustee, and the Corporation hereby appoints the Trustee
as its agent to receive all such presentations, demands and notices.
In addition to any such office or agency, the Corporation may from time to
time designate one or more offices or agencies (outside New York, New York),
where the Senior Notes may be presented for registration of transfer and for
exchange in the manner provided in this Indenture, and the Corporation may from
time to time rescind such designation, as the Corporation may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Corporation of its obligation to maintain any such office
or agency in New York, New York for such purposes. The Corporation will give to
the Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.3 Appointments to Fill Vacancies in Trustee's Office.
The Corporation, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.4 Provision as to Paying Agent.
(a) If the Corporation shall appoint a Paying Agent other than the Trustee
with respect to the Senior Notes, it will cause such Paying Agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 3.4:
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, and interest on, the
Senior Notes (whether such sums have been paid to it by the Corporation or
by any other obligor on the Senior Notes) in trust for the benefit of the
Holders of the Senior Notes;
(ii) that it will give the Trustee notice of any failure by the
Corporation (or by any other obligor on the Senior Notes) to make any
payment of the principal of, and premium, if any, and interest on, the
Senior Notes when the same shall be due and payable; and
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(iii) at any time during the continuance of any such default, upon
written request of the Trustee, forthwith pay to the Trustee all sums so
held by such Paying Agent.
(b) If the Corporation shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, and interest on
the Senior Notes, set aside, segregate and hold in trust for the benefit of the
Holders of the Senior Notes a sum sufficient to pay such principal, premium or
interest so becoming due and will notify the Trustee of any failure to take such
action.
(c) Anything in this Section 3.4 to the contrary notwithstanding, the
Corporation may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Senior Notes, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for such Senior Notes by
the Trustee or any Paying Agent hereunder, as required by this Section 3.4, such
sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 3.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.4 is subject to
Sections 11.3 and 11.4.
SECTION 3.5 Certificate to Trustee.
The Corporation will deliver to the Trustee, within 120 days after the end
of each fiscal year ending after the date hereof, so long as any Senior Notes
are outstanding, a Certificate stating that in the course of the performance by
the signers of their duties as officers of the Corporation they would normally
have knowledge of any default by the Corporation in the performance of any
covenants contained herein, stating whether or not they have knowledge of any
such default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof.
SECTION 3.6 Compliance with Consolidation Provisions.
The Corporation will not, while any of the Senior Notes remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article Ten hereof are complied with.
SECTION 3.7 Liens.
Neither the Corporation nor any Restricted Subsidiary shall create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien (other
than Permitted Liens) securing Indebtedness upon any of its property or assets,
now owned or hereafter acquired, unless all payments due under this Indenture,
the Senior Notes and/or the Senior Subsidiary Guarantees (as applicable) are
secured on an equal and ratable basis with the obligations so secured until such
time as such Indebtedness is no longer secured by a Lien.
SECTION 3.8 Sale and Leaseback Transactions.
The Corporation shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
--------
the Corporation or any Restricted Subsidiary may enter into a sale and leaseback
transaction if:
(a) the Corporation or that Restricted Subsidiary, as applicable, could
have incurred Indebtedness in an amount equal to the Attributable Debt relating
to such sale and leaseback transaction under the EBITDA Coverage Ratio test in
the first paragraph of Section 3.11 hereof; or
24
(b) the transfer of assets in that sale and leaseback transaction is
permitted by, and the Corporation applies the net proceeds of such transaction
in compliance with, Section 3.12 hereof.
The foregoing provisions shall not prohibit Third-Party Financing
Transactions entered into by the Corporation or any Restricted Subsidiary.
SECTION 3.9 Restricted Payments.
The Corporation shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other payment or distribution
on account of the Corporation's or any of its Restricted Subsidiaries' Equity
Interests or to the direct or indirect holders of the Corporation's or any of
its Restricted Subsidiaries' Equity Interests in their capacity as such (other
than dividends or distributions payable (A) in Equity Interests of the
Corporation or (B) to the Corporation or a Restricted Subsidiary of the
Corporation);
(b) purchase, redeem or otherwise acquire or retire for value any Equity
Interests of the Corporation or any direct or indirect parent of the
Corporation;
(c) make any Restricted Investment; or
(d) make any principal payment on, purchase, defease, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, as the case may
be, any subordinated Indebtedness (all such payments and other actions set forth
in clauses (a) through (d) above being collectively referred to as "Restricted
----------
Payments")
--------
unless, at the time of and after giving effect to such Restricted
Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(ii) the Corporation is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Debt) in compliance with the first
paragraph of Section 3.11; and
(iii) the aggregate amount (the amount expended for these purposes,
if other than in cash, being the fair market value of the relevant
property) of Restricted Payments, including the proposed Restricted
Payment, made subsequent to the Issue Date is less than the sum of:
(1) 50% of cumulative Consolidated Net Income or, if
cumulative Consolidated Net Income is a loss, minus 100% of the loss,
accrued during the period, treated as one accounting period, from the
beginning of the first full fiscal quarter after the Issue Date to the
end of the most recent fiscal quarter for which consolidated financial
information of the Corporation is available; plus
----
(2) 100% of the aggregate net cash proceeds received by the
Corporation from any Person from any:
(i) (x) contribution to the equity capital of the
Corporation not representing an interest in Disqualified
Capital Stock or (y) issuance and sale of Qualified Capital
Stock of the Corporation, in each case, subsequent to the Issue
Date, or
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(ii) issuance and sale subsequent to the Issue Date (and,
in the case of Indebtedness of a Restricted Subsidiary, at such
time as it was a Restricted Subsidiary) of any Indebtedness for
borrowed money of the Corporation or any Restricted Subsidiary
that has been converted into or exchanged for Qualified Capital
Stock of the Corporation,
excluding, in each case, any net cash proceeds: (x) received
---------
from a Subsidiary of the Corporation, or (y) applied in
accordance with the second paragraph of this covenant below;
plus
----
(3) without duplication of any amounts included in clause (1) or
(2) above or (4) below, in the case of any of the following events
involving Investments made after the Issue Date:
(i) the disposition of such Investment by, or repayment of
such Investment to, the Corporation or a Restricted Subsidiary,
or
(ii) the receipt by the Corporation or any Restricted
Subsidiary of any dividends or distributions from such Investment
an amount equal to the lesser of:
(a) the amount of such Investment treated as a
Restricted Payment pursuant to clause (c) above, and
(b) the amount in cash received by the Corporation or
any Restricted Subsidiary upon such disposition, repayment,
dividend or distribution; plus
----
(4) so long as the designation of such Unrestricted Subsidiary
was treated as a Restricted Payment made after the Issue Date, in the
case of a redesignation of any Unrestricted Subsidiary to be a
Restricted Subsidiary in accordance with Section 3.15, an amount equal
to the lesser of:
(i) the Corporation's Investment in such Unrestricted
Subsidiary at the time of such redesignation that was treated as
a Restricted Payment (including upon designation as a Restricted
Subsidiary); and
(ii) that portion of the fair market value of the net assets
of such Unrestricted Subsidiary at the time of such redesignation
that is proportionate to the Corporation's equity interest in
such Unrestricted Subsidiary at the time of the redesignation,
plus
(5) $10 million.
The foregoing provisions shall not prohibit:
(a) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Corporation or any
Restricted Subsidiary or of any Equity Interests of the Corporation in exchange
for, or out of the net cash proceeds of the substantially concurrent sale (other
than to a Restricted Subsidiary of the
26
Corporation) of, (i) subordinated Indebtedness of the Corporation or any
Restricted Subsidiary that qualifies as Permitted Refinancing Indebtedness or
(ii) Equity Interests of the Corporation (other than Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized for any
--------
such redemption, repurchase, retirement, defeasance or other acquisition shall
be excluded from clause (d)(iii)(2) of the preceding paragraph;
(c) the payment of any dividend by a Restricted Subsidiary of the
Corporation to the holders of its common Equity Interests on a pro rata basis;
(d) so long as no Default has occurred and is continuing or would be caused
thereby, the repurchase, redemption or other acquisition or retirement for value
of any Equity Interests of the Corporation or any Restricted Subsidiary of the
Corporation held by any current or former officers, directors or employees of
the Corporation (or any Restricted Subsidiary of the Corporation) pursuant to
any management equity subscription agreement, stock option agreement or stock
plan entered into in the ordinary course of business in an amount not to exceed
$500,000 in any fiscal year or $1.5 million in the aggregate;
(e) repurchases of Equity Interests of the Corporation deemed to occur upon
exercise of stock options to the extent Equity Interests represent a portion of
the exercise price of such options; or
(f) so long as no Default has occurred and is continuing or would be caused
thereby, other Restricted Payments in an aggregate amount not to exceed $5
million since the Issue Date.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the assets or securities
proposed to be transferred or issued to or by the Corporation or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued by this
covenant shall be determined by the Board of Directors, whose resolution with
respect thereto shall be conclusive.
SECTION 3.10 Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Corporation shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(a) pay dividends or make any other distributions to the Corporation or any
of its Restricted Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, or pay any
indebtedness owed to the Corporation or any of its Restricted Subsidiaries;
(b) make loans or advances to the Corporation or any Restricted Subsidiary
of the Corporation; or
(c) transfer any of its properties or assets to the Corporation or any of
its Restricted Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances or
restrictions existing under or by reasons of:
(i) Existing Indebtedness as in effect on the Issue Date;
(ii) this Indenture, the Senior Notes and the Senior Subsidiary
Guarantees;
(iii) applicable law;
27
(iv) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Corporation or any Restricted Subsidiary of the
Corporation as in effect at the time of such acquisition (except to the
extent such Indebtedness was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired,
provided that, in the case of Indebtedness, such Indebtedness was permitted
--------
by the terms of this Indenture to be incurred;
(v) non-assignment provisions in leases, licenses or similar
agreements entered into in the ordinary course of business;
(vi) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by that Restricted Subsidiary
pending its sale or other disposition;
(vii) Liens securing Indebtedness that limit the right of the debtor
to dispose of the assets subject to such Lien;
(viii) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
stock sale agreements and other similar agreements entered into in the
ordinary course of business;
(ix) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(x) restrictions on the transfer of assets subject to any Lien
permitted under this Indenture imposed by the holder of such Lien;
(xi) encumbrances or restrictions existing under or arising pursuant
to any Bank Credit Facility as in effect on the Issue Date;
(xii) any Purchase Money Note or other Indebtedness or other
contractual requirements of a Receivables Subsidiary in connection with a
Qualified Receivables Transaction; provided that such restrictions apply
--------
only to such Receivables Subsidiary;
(xiii) encumbrances or restrictions under credit facilities,
indentures or other contracts relating to Permitted Debt incurred under
clause (d) of Section 3.11 in effect from time to time; and
(xiv) any encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (i) through (xii) above; provided that such
--------
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of
the Board of Directors of the Corporation, not materially more restrictive
with respect to such dividend and other payment restrictions than those
contained in the dividends or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase, supplement,
refunding, replacement or refinancing.
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SECTION 3.11 Incurrence of Indebtedness.
The Corporation shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
-----
Debt), provided, however, that the Corporation may incur Indebtedness (including
-------- -------
Acquired Debt), and the Restricted Subsidiaries may incur Indebtedness, if the
EBITDA Coverage Ratio for the Corporation's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred would have
been at least 2.5 to 1, determined on a pro forma basis, as if the additional
Indebtedness had been incurred at the beginning of such four-quarter period.
The provisions of the first paragraph of this Section 3.11 shall not apply
to the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
--------------
(a) the incurrence by the Corporation and any Restricted Subsidiary of
Indebtedness under any Bank Credit Facility and letters of credit under any Bank
Credit Facility in an aggregate principal amount(with letters of credit being
deemed to have a principal amount equal to the face amount) of up to
$350,000,000 less the aggregate amount of all Net Proceeds of Asset Sales that
have been applied by the Corporation or any Restricted Subsidiary of the
Corporation since the Issue Date to permanently repay Indebtedness under a Bank
Credit Facility pursuant to Section 3.12 hereof; provided that the amount of
--------
Indebtedness permitted to be incurred pursuant to any Bank Credit Facility in
accordance with this clause (a) shall be in addition to any Indebtedness
permitted to be incurred pursuant to any Bank Credit Facility, in reliance on,
and in accordance with, clauses (e) and (n) below or in the first paragraph
hereof;
(b) the incurrence by the Corporation and its Restricted Subsidiaries of
the Existing Indebtedness;
(c) the incurrence by the Corporation and the Guarantors of Indebtedness
represented by the Senior Notes in an aggregate principal amount of up to
$167,000,000 and the related Senior Subsidiary Guarantees to be issued on the
Issue Date;
(d) the incurrence of Indebtedness by Excluded Subsidiaries in an
aggregate amount not to exceed $100 million at any time outstanding;
(e) the incurrence by the Corporation or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, incurred for the purpose
of financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business of the
Corporation or such Restricted Subsidiary, in an aggregate principal amount
(which amount may, but need not be, incurred in whole or in part under any Bank
Credit Facility), including all Permitted Refinancing Indebtedness incurred to
refund, refinance, replace, amend, restate, modify or renew, in whole or in
part, any Indebtedness incurred pursuant to this clause (e), not to exceed the
greater of the Permitted Debt Percentage of Total Net Tangible Assets as of the
date of incurrence and $25 million at any time outstanding;
(f) the incurrence by the Corporation or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance, replace, amend, restate, modify
or renew, in whole or in part, Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under the
first paragraph hereof or clauses (b) or (c) of this paragraph;
(g) the incurrence by the Corporation or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Corporation and
any Restricted Subsidiary of the Corporation; provided, however, that each of
-------- -------
29
the following shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Corporation or such Restricted Subsidiary, as the case may
be, that was not permitted by this clause (g):
(i) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the
Corporation or a Restricted Subsidiary thereof, other than any such
issuance or transfer of Equity Interests in connection with Liens granted
to secure borrowings under any Bank Credit Facility; and
(ii) any sale or other transfer of any such Indebtedness to a Person
that is not either the Corporation or a Restricted Subsidiary thereof,
other than any sale or transfer of such Indebtedness in connection with
Liens granted to secure borrowings under any Bank Credit Facility;
(h) the incurrence by the Corporation or any of the Guarantors of Hedging
Obligations that are incurred for the purpose of fixing or hedging interest rate
risk with respect to any floating or fixed rate Indebtedness that is permitted
by the terms of this Indenture to be outstanding and the incurrence of
Indebtedness under Other Hedging Agreements providing protection against
fluctuations in currency values or in the price of commodities and raw materials
in connection with the Corporation's or any of its Restricted Subsidiaries'
operations so long as management of the Corporation or such Restricted
Subsidiary, as the case may be, has determined that the entering into of such
Other Hedging Agreements are bona fide hedging activities;
(i) the guarantee by the Corporation or any Restricted Subsidiary of
Indebtedness of the Corporation or a Restricted Subsidiary of the Corporation
that was permitted to be incurred under this Section 3.11;
(j) the incurrence by the Corporation's Unrestricted Subsidiaries of Non-
Recourse Debt, provided, however, that if any such Indebtedness ceases to be
-------- -------
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to
constitute an incurrence of Indebtedness by a Restricted Subsidiary of the
Corporation that was not permitted by this clause (j);
(k) Indebtedness arising from agreements of the Corporation or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or a Subsidiary, other than
guarantees of Indebtedness incurred by any Person acquiring all or any portion
of such business, assets or a Subsidiary for the purpose of financing such
acquisition; provided, however, that (A) such Indebtedness is not reflected on
-------- -------
the balance sheet of the Corporation or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not otherwise
reflected on the balance sheet will not be deemed to be reflected on such
balance sheet for purposes of this clause (A)) and (B) the maximum assumable
liability in respect of all such Indebtedness shall at no time exceed the gross
proceeds including noncash proceeds (the fair market value of such noncash
proceeds being measured at the time received and without giving effect to any
subsequent changes in value) actually received by the Corporation and its
Restricted Subsidiaries in connection with such disposition;
(l) the incurrence of obligations in respect of performance and surety
bonds and completion guarantees provided by the Corporation or any of its
Restricted Subsidiaries in the ordinary course of business;
(m) the incurrence of Indebtedness by a Receivables Subsidiary in a
Qualified Receivables Transaction that is not recourse to the Corporation or any
of its Subsidiaries (except for Standard Securitization Undertakings); provided
--------
that the aggregate principal amount of Indebtedness outstanding under this
clause (m) does not exceed $50 million; and
30
(n) the incurrence by the Corporation of additional Indebtedness in an
aggregate principal amount (or accreted value, as applicable) (which amount may,
but need not be, incurred in whole or in part under a Bank Credit Facility) at
any time outstanding, not to exceed $50 million.
For purposes of determining compliance with this Section 3.11, in the event
that an item of proposed Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (a) through (n) above, or is
entitled to be incurred pursuant to the first paragraph of this Section 3.11,
the Corporation shall be permitted to classify or later reclassify such item of
Indebtedness in any manner that complies with this Section 3.11. Indebtedness
under a Bank Credit Facility outstanding on the date on which the Senior Notes
are first issued and authenticated under this Indenture shall be deemed to have
been incurred on such date in reliance on the exception provided by clause (a)
of the definition of Permitted Debt.
SECTION 3.12 Asset Sales.
The Corporation shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (x) the Corporation (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale which, taken as a whole, is at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed of,
(y) such fair market value is determined by the Corporation's Board of Directors
and evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee and (z) at least 75% of the
consideration therefor received by the Corporation or such Restricted Subsidiary
is in the form of cash or Cash Equivalents or Marketable Securities. For
purposes of this provision, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Corporation's or such Restricted
Subsidiary's most recent balance sheet) of the Corporation or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Senior Notes or any Senior Subsidiary Guarantee) that
are assumed by the transferee of any such assets; and
(b) any securities, notes or other obligations received by the Corporation
or any such Restricted Subsidiary from such transferee that are converted, sold
or exchanged by the Corporation or such Restricted Subsidiary into cash within
30 days of the related Asset Sale (to the extent of the cash received in that
conversion).
Within 270 days after the receipt of any Net Proceeds from an Asset Sale,
the Corporation may apply such Net Proceeds, at its option:
(i) to repay Indebtedness under any Bank Credit Facility;
(ii) to invest in or to acquire other properties or assets to replace
the properties or assets that were the subject of the Asset Sale or that
will be used in businesses of the Corporation or its Restricted
Subsidiaries, as the case may be, existing at the time such assets are
sold; and
(iii) to make (or cause such Restricted Subsidiary to make) a capital
expenditure or commit (or cause such Restricted Subsidiary to commit) to
make a capital expenditure (such commitments to include amounts anticipated
to be expended pursuant to the Corporation's capital investment plan as
adopted by the Board of Directors of the Corporation) within 365 days of
such Asset Sale.
Pending the final application of any such Net Proceeds, the Corporation may
invest such Net Proceeds in any manner that is not prohibited by this Indenture.
31
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph shall constitute "Excess Proceeds." When the
---------------
aggregate amount of Excess Proceeds exceeds $5 million, the Corporation shall
make an Asset Sale Offer to all Holders of Senior Notes. The offer price in any
Asset Sale Offer shall be equal to 100% of principal amount plus accrued and
unpaid interest to the date of purchase and shall be payable in cash. If any
Excess Proceeds remain after consummation of an Asset Sale Offer, the
Corporation may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Senior Notes
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Senior Notes to be purchased on a pro rata basis based
on the principal amount of Senior Notes tendered. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.
The Corporation shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with each
repurchase of Senior Notes pursuant to an Asset Sale Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 3.12, the Corporation shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under the provisions of this Section 3.12 by virtue of
such conflict.
SECTION 3.13 Transactions with Affiliates.
The Corporation shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each, an "Affiliate Transaction"), unless:
---------------------
(a) such Affiliate Transaction is on terms taken as a whole that are no
less favorable to the Corporation or the relevant Restricted Subsidiary than
those that could have been obtained in a comparable transaction by the
Corporation or such Restricted Subsidiary with an unrelated Person;
(b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving more than $2.5 million individually or in the
aggregate, the Corporation delivers to the Trustee a resolution of the Board of
Directors set forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with this Section 3.13 and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors; and
(c) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving more than $7.5 million individually or in the
aggregate, the Corporation shall, prior to the consummation thereof, obtain a
favorable opinion as to the fairness of such Affiliate Transaction to the
Corporation and the relevant Restricted Subsidiary (if any) from a financial
point of view from an Independent Financial Advisor and file the same with the
Trustee.
Notwithstanding the foregoing, the following items shall not be deemed to
be Affiliate Transactions:
(i) any employment agreement entered into by the Corporation or any
Restricted Subsidiary of the Corporation in the ordinary course of
business;
(ii) transactions between or among the Corporation and/or its
Restricted Subsidiaries;
(iii) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Corporation;
32
(iv) sales of Equity Interests to Affiliates of the Corporation;
(v) Restricted Payments made in cash that are permitted by the
provisions of Section 3.9 hereof;
(vi) ordinary course purchases and sales of goods or services
between or among the Corporation and its Subsidiaries (or with Kobe Steel
Limited or its successors);
(vii) transactions described in clause (xi) of the definition of
Permitted Investments; or
(viii) reasonable fees and expenses and compensation paid to, and
indemnity provided on behalf of, officers, directors or employees of the
Corporation or any Subsidiary as determined in good faith by the Board of
Directors of the Corporation or senior management.
SECTION 3.14 Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, each Holder of Senior Notes shall have
the right to require the Corporation to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of that Holder's Senior Notes pursuant
to the offer described below (the "Change of Control Offer") on the terms set
-----------------------
forth in this Section 3.14. In the Change of Control Offer, the Corporation
shall offer payment in cash equal to 101% of the aggregate principal amount of
Senior Notes repurchased plus accrued and unpaid interest thereon, to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
-------------------------
Change of Control, the Corporation shall mail a notice to the Trustee and each
Holder describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Senior Notes on the date specified in such
notice, which date shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the "Change of Control Payment Date"),
------------------------------
pursuant to the procedures required by this Indenture and described in such
notice. The Corporation shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Senior Notes as a result of a Change of Control. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Section 3.14, the Corporation shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under the provisions of this Section 3.14 by virtue of
such conflict.
(b) On the Change of Control Payment Date, the Corporation shall, to the
extent lawful:
(i) accept for payment all Senior Notes or portions thereof
properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Trustee an amount equal to the Change of
Control Payment in respect of all Senior Notes or portions thereof so
tendered; and
(iii) deliver or cause to be delivered to the Trustee the Senior
Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Senior Notes or portions thereof being
purchased by the Corporation.
The Trustee shall promptly mail to each Holder of Senior Notes so tendered
the Change of Control Payment for such Senior Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Senior Note equal in principal amount to any unpurchased
portion of the Senior Notes surrendered, if any; provided that each such new
--------
Senior Note shall be in a principal amount of $1,000 or an integral multiple
thereof. Prior to complying with any of the provisions of this Section 3.14, but
in any event within 90 days following a Change
33
of Control, the Corporation shall either repay all outstanding Indebtedness
under the Bank Credit Facility or obtain the requisite consents, if any, under
the Bank Credit Facility to permit the repurchase of Senior Notes required by
this Section 3.14. The Corporation shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(c) The Corporation shall first comply with the covenant in the
second to last sentence of the immediately preceding paragraph before it shall
be required to repurchase Senior Notes pursuant to the provisions described
above. The Corporation's failure to comply with the aforementioned covenant may
(with notice and lapse of time) constitute an Event of Default described in
Section 5.1(d) but shall not constitute an Event of Default described in
Sections 5.1(a) or 5.1(b).
(d) Notwithstanding anything to the contrary in this Section 3.14,
the Corporation shall not be required to make a Change of Control Offer upon the
occurrence of a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 3.14 and all other provisions of this
Indenture applicable to a Change of Control Offer made by the Corporation and
purchases all Senior Notes validly tendered and not withdrawn under such Change
of Control Offer. The Corporation shall announce publicly or provide written
notice to the Trustee and the Holders within 15 days following the occurrence of
a Change of Control.
The foregoing provisions of this Section 3.14, insofar as they require
the Corporation to make a Change of Control Offer following a Change of Control,
shall be applicable regardless of whether any other provisions of this Indenture
are applicable.
SECTION 3.15 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if that designation would not cause an Event of
Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary,
the aggregate fair market value of all outstanding Investments owned by the
Corporation and its Restricted Subsidiaries in the Subsidiary so designated
shall be deemed to be an Investment made as of the time of such designation and
shall either reduce the amount available for Restricted Payments under the first
paragraph of Section 3.9 hereof or reduce the amount available for future
Investments under one or more clauses of the definition of Permitted
Investments, as the Corporation shall determine. That designation shall only be
permitted if such Investment would be permitted at that time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary
to be a Restricted Subsidiary if the redesignation would not cause a Default or
an Event of Default (assuming that any Liens or Indebtedness of such
Unrestricted Subsidiary are deemed to be incurred immediately upon such
redesignation).
SECTION 3.16 Additional Senior Subsidiary Guarantees.
If the Corporation or any of its Domestic Subsidiaries acquires or
creates any Domestic Subsidiary after the date of this Indenture that is not a
Guarantor, then the Corporation shall cause such Domestic Subsidiary (other than
a Receivables Subsidiary) to execute and deliver a supplemental indenture in
form and substance substantially similar to Exhibit C hereto pursuant to which
it will become a Guarantor under this Indenture.
SECTION 3.17 Notice of Default.
The Corporation shall file with the Trustee written notice of the
occurrence of any Default or Event of Default within 30 Business Days of its
becoming aware of any such Default or Event of Default.
SECTION 3.18 Conduct of Business.
34
The Corporation shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any businesses which are not (i) the same as or
reasonably similar to, (ii) ancillary or related to, or (iii) a reasonable
extension, development or expansion of, the businesses in which the Corporation
and its Restricted Subsidiaries are engaged on the date hereof.
SECTION 3.19 Limitation of Ownership of Capital Stock of Certain
Restricted Subsidiaries.
The Corporation will not, and will not permit any Restricted
Subsidiary to, sell or issue any share of Capital Stock of a Restricted
Subsidiary which is a Domestic Subsidiary to any Person other than the
Corporation or a Restricted Subsidiary, except for: (a) the sale or issuance of
Capital Stock of any Domestic Subsidiary whose primary business consists of the
gear manufacturing operations of The Horsburgh & ▇▇▇▇▇ Company; or (b) the sale
of at least 85% of the shares of the Capital Stock of any Domestic Subsidiary
held by the Corporation and its Restricted Subsidiaries effected in accordance
with Section 3.12.
SECTION 3.20 Limitation on Layered Indebtedness.
The Corporation will not, and will not permit any Guarantor to,
directly or indirectly, incur any Indebtedness that is subordinate in right of
payment to any other Indebtedness, unless such Indebtedness is expressly
subordinate in right of payment to the Senior Notes to the same extent and on
the same terms as such Indebtedness is subordinate to such other Indebtedness.
ARTICLE 4
HOLDERS' LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE
SECTION 4.1 Holders' Lists.
The Corporation shall furnish or cause to be furnished to the Trustee:
(a) on a semi-annual basis on each Regular Record Date for the Senior
Notes, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Senior Notes as of such record date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation, 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 that no such lists need be furnished so long as the Trustee
--------
is in possession thereof by reason of its acting as Senior Note registrar.
SECTION 4.2 Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Senior Notes (1) contained in the most recent list furnished to it as provided
in Section 4.1 or (2) received by it in the capacity of Senior Notes registrar
(if so acting) hereunder.
The Trustee may destroy any list furnished to it as provided in
Section 4.1 upon receipt of a new list so furnished.
35
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
----------
reasonable proof that each such applicant has owned a Senior Note for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Indenture or under such Senior Notes and
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within five Business Days
after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
Section 4.2(a); or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with the provisions of
Section 4.2(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee, in its sole discretion, shall elect not to afford such
applicants access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder whose name and address appears
in the information preserved at the time by the Trustee in accordance with the
provisions of Section 4.2(a) a copy of the form of proxy or other communication
which is specified in such request with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every Holder of Senior Notes, by receiving and holding
the same, agrees with the Corporation and the Trustee that neither the
Corporation nor the Trustee nor any Paying Agent shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with the provisions of Section 4.2(b), regardless
of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material pursuant to a
request made under said Section 4.2(b).
SECTION 4.3 Reports by Corporation.
(a) The Corporation shall file with the Trustee, within 15 days after
the Corporation is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Corporation may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if the Corporation is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act for a U.S. company subject to the reporting obligations thereof
(whether or not the Corporation is so subject) within the time periods specified
therein in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations.
36
(b) The Corporation shall file with the Trustee and the Commission,
in accordance with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Corporation with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations.
(c) The Corporation shall transmit by mail to all Holders of Senior
Notes, as the names and addresses of such Holders appear upon the Senior Note
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Corporation pursuant to Sections 4.3(a) and 4.3(b) as may be required by rules
and regulations prescribed from time to time by the Commission.
(d) The Corporation shall furnish to the Trustee within 120 days of
the end of each fiscal year, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act.
(e) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.4 Reports by the Trustee.
(a) The term "reporting date," as used in this Section 4.4, shall be
--------------
May 15th of each year, commencing with May 15, 2002. Within 60 days after the
reporting date in each year, the Trustee shall transmit by mail to all Holders
as provided in Section 313(c) of the Trust Indenture Act, as their names and
addresses appear in the Senior Note Register, a brief report dated as of such
reporting date, if required by Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall transmit to the Holders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such), since the date of the last
report transmitted pursuant to the provisions of Section 4.4(a) (or, if no such
report has yet been so transmitted, since the date of execution of this
Indenture), for the reimbursement of which it claims or may claim a lien or
charge prior to that of the Senior Notes on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to this
subsection, if such advances remaining unpaid at any time aggregate more than
10% of the principal amount of Senior Notes outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 4.4 shall be transmitted by
mail, first class postage prepaid to all Holder as required by Section 313(c) of
the Trust Indenture Act.
(d) 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 the Senior Notes are listed and also with the Commission. The Corporation
will promptly notify the Trustee when and as the Senior Notes become listed on
any stock exchange and of any delisting thereof.
(e) The Trustee shall comply with Sections 313(b) and 313(c) of the
Trust Indenture Act.
37
ARTICLE 5
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default.
"Event of Default" means the occurrence of one or more of the following:
----------------
(a) default in the payment of any installment of interest upon any Senior
Notes when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of all or any part of the principal or premium,
if any, on any Senior Notes as and when the same shall become due and payable
either at maturity, upon redemption or otherwise; or
(c) the failure to perform or comply with any of the provisions described
under Article Ten; or
(d) default in the performance, or breach, of any covenant or warranty of
the Corporation in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is specifically dealt with elsewhere in
this Section 5.1), and, except in the case of a failure to make the Change of
Control Payment on a Change of Control Payment Date, continuance of such default
or breach for a period of 45 days after there has been given to the Corporation
by the Trustee or by the Holders of at least 25% in principal amount of the
outstanding Senior Notes a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or (1)
(e) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Corporation or any Restricted Subsidiary that
is a Significant Subsidiary (or group of Restricted Subsidiaries that would
together constitute a Significant Subsidiary) in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or any Restricted
Subsidiary that is a Significant Subsidiary (or group of Restricted Subsidiaries
that would together constitute a Significant Subsidiary) or for any substantial
part of its or their property, or ordering the winding-up or liquidation of its
or their affairs and such decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or
(f) the Corporation or any Restricted Subsidiary that is a Significant
Subsidiary (or group of Restricted Subsidiaries that would together constitute a
Significant Subsidiary) shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Corporation or any Restricted Subsidiary that is a
Significant Subsidiary (or group of Restricted Subsidiaries that would together
constitute a Significant Subsidiary) or of any substantial part of its or their
property, or shall make any general assignment for the benefit of creditors; or
(g) default by the Corporation or any Restricted Subsidiary under any
Indebtedness which (i) is caused by a failure to pay principal of or premium, if
any, or interest on such Indebtedness prior to the expiration of any applicable
grace period provided in such Indebtedness on the date of such default or (ii)
results in the acceleration of such Indebtedness prior to its stated maturity,
and the principal amount of Indebtedness covered by (i) or (ii) at the relevant
time, aggregates $25 million or more; or
38
(h) failure by the Corporation or any of its Restricted Subsidiaries to
pay one or more final judgments against any of them aggregating $25 million or
more, which judgment(s) are not paid, discharged or stayed for a period of 60
days or more; or
(i) except as permitted by this Indenture, any Senior Subsidiary Guarantee
of any Guarantor that is a Significant Subsidiary is held to be unenforceable or
invalid in a judicial proceeding or ceases for any reason to be in full force
and effect or any Guarantor that is a Significant Subsidiary, or any Person
acting on behalf of any such Guarantor, denies or disaffirms such Guarantor's
obligations under its Senior Subsidiary Guarantee.
If an Event of Default with respect to the Senior Notes occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Senior Notes shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Senior Notes then outstanding hereunder, by notice in writing to the Corporation
(and to the Trustee if given by Holders), may declare the entire principal of
all Senior Notes and the interest accrued thereon and unpaid, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Corporation, the Trustee and the Holders of the Senior Notes, as the case may
be, shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Corporation, the Trustee
and the Holders of such Senior Notes shall continue as though no such
proceedings had been taken.
SECTION 5.2 Payment of Senior Notes on Default; Suit Therefor.
The Corporation covenants that if an Event of Default other than under
Section 5.1(e) or (f) shall have occurred and be continuing, then, upon demand
of the Trustee, the Corporation will pay to the Trustee, for the benefit of the
Holders of the Senior Notes, the whole amount that then shall have become due
and payable on all such Senior Notes for principal and premium, if any, or
interest, or both, as the case may be, upon the overdue principal and premium,
if any (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the rate borne by
the Senior Notes; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any other
amounts owing to the Trustee hereunder other than through its negligence or bad
faith.
If the Corporation shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Corporation or any other obligor on such
Senior Notes and collect in the manner provided by law out of the property of
the Corporation or any other obligor on such Senior Notes wherever situated the
moneys adjudged or decreed to be payable.
If an Event of Default under Section 5.1(e) or (f) shall have occurred, the
Trustee, irrespective of whether the principal of the Senior Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.2, shall be entitled and empowered, by intervention
in such proceedings or otherwise, to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid in respect of the Senior
Notes and, in case of any judicial proceedings, to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents, attorneys and
counsel, and for any other amounts owing to the Trustee and each
39
predecessor Trustee, except as a result of negligence or bad faith) and of the
Holders allowed in such judicial proceedings relative to the Corporation or any
other obligor on the Senior Notes, or to the creditors or property of the
Corporation or such other obligor, unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Senior Notes in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person performing
similar functions in comparable proceedings, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other amounts owing to the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
Nothing herein contained shall be construed 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 Senior
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.
All rights of action and of asserting claims under this Indenture, or under
any of the Senior Notes, may be enforced by the Trustee without the possession
of any of the Senior Notes, or the production thereof in any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the Holders of the
Senior Notes.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Senior Notes, and it shall not be necessary to make any Holders of the
Senior Notes parties to any such proceedings.
SECTION 5.3 Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee pursuant to this Article Five shall be
applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the Senior Notes in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection and reasonable
compensation to the Trustee, its agents, attorneys and counsel, and of all other
amounts owing to the Trustee except as a result of its negligence or bad faith;
Second: To the payment of the amounts then due and unpaid upon the Senior
Notes for principal (and premium, if any) and interest on the Senior Notes, in
respect of which or for the benefit of which money has been collected, ratably,
without preference of priority of any kind, according to the amounts due on such
Senior Notes for principal (and premium, if any) and interest, respectively.
SECTION 5.4 Proceedings by Holders.
No Holder of any Senior Note shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given
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to the Trustee written notice of an Event of Default and of the continuance
thereof specifying such Event of Default, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal amount of the
Senior Notes then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action,
suit or proceeding, it being understood and intended, and being expressly
covenanted by the taker and Holder of every Senior Note with every other taker
and Holder and the Trustee, that no one or more Holders of Senior Notes shall
have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Senior Notes.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Senior Note to receive payment of the principal of
(and premium, if any) and interest on such Senior Note, on or after the same
shall have become due and payable, or to institute suit for the enforcement of
any such payment, shall not be impaired or affected without the consent of such
Holder. For the protection and enforcement of the provisions of this Section
5.4, each and every Holder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
SECTION 5.5 Proceedings by Trustee.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing.
Except as otherwise provided in the last paragraph of Section 2.8 with
respect to the replacement or payment of mutilated, lost or stolen Senior Notes,
all powers and remedies given by this Article Five to the Trustee or to the
Holders shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee or the
Holders of the Senior Notes, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Senior Notes, and no
delay or omission of the Trustee or of any Holder of any of the Senior Notes to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.4, every power and remedy given by this
Article Five or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by
the Holders.
SECTION 5.7 Direction of Proceedings and Waiver of Defaults by
Majority of Holders.
The Holders of a majority in aggregate principal amount of the Senior
Notes then outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, however, that
-------- -------
(subject to the provisions of Section 6.1) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine that the
action so directed would be unjustly prejudicial to the Holders not taking part
in such direction or if the Trustee being advised
41
by counsel determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceedings so directed
would involve the Trustee in personal liability. Prior to any declaration
accelerating the maturity of the Senior Notes, the Holders of a majority in
aggregate principal amount of the Senior Notes then outstanding may on behalf of
the Holders of all of the Senior Notes waive any past Default or Event of
Default and its consequences except a Default (a) in the payment of principal
of, premium, if any, or interest on any of the Senior Notes, or (b) in respect
of covenants or provisions hereof which cannot be modified or amended without
the consent of the Holder of each Senior Note affected. Upon any such waiver,
the Default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Corporation, the Trustee and the Holders of the Senior Notes
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon. Whenever any Default or Event of
Default hereunder shall have been waived as permitted by this Section 5.7, said
Default or Event of Default shall for all purposes of the Senior Notes and this
Indenture be deemed to have been cured and to be not continuing.
The foregoing provisions shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such sections are hereby expressly
excluded from this Indenture and the Senior Notes, as permitted by the Trust
Indenture Act.
SECTION 5.8 Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a default, mail
to all Holders, as the names and addresses of such Holders appear upon the
Senior Note Register, notice of all defaults known to the Trustee, unless such
defaults shall have been cured before the giving of such notice (the term
"defaults" for the purpose of this Section 5.8 being hereby defined to be the
events specified in Section 5.1, not including periods of grace, if any,
provided for therein, and irrespective of the giving of written notice specified
in Section 5.1(d)); and provided that, except in the case of default in the
--------
payment of the principal of, premium, if any, or interest on any of the Senior
Notes, the Trustee shall (i) not be deemed to have knowledge of a default unless
a Responsible Officer has actual knowledge or receives written notice and (ii)
be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
SECTION 5.9 Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Senior Note by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken 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 and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section 5.9 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
Senior Notes then outstanding, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Senior Note against the Corporation on or after the same shall have
become due and payable.
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ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred, undertakes
to perform such duties and only such duties as are specifically set forth in
this Indenture. If an Event of Default has occurred (which has not been cured
or waived) 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.
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:
(a) prior to the occurrence of an Event of Default and after the curing
or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Senior Notes shall be determined solely by the express provisions of this
Indenture and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith, in accordance with the direction of the
Holders pursuant to Section 5.7, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
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SECTION 6.2 Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Corporation or any
Guarantor mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Corporation
or of such Guarantor;
(c) the Trustee may consult with counsel of its selection and any advice
or 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 accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture or by any Senior Subsidiary Guarantee
at the request, order or direction of any of the Holders, pursuant to the
provisions of this Indenture or such Senior Subsidiary Guarantee, unless such
Holders shall have offered to the Trustee security or indemnity satisfactory to
the Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture and by the
Senior Subsidiary Guarantees; provided, however, that nothing contained herein
-------- -------
shall relieve the Trustee of the obligation, upon the occurrence of an Event of
Default (that has not been cured or waived) to exercise with respect to the
Senior Notes such of the rights and powers vested in it by this Indenture and by
the Senior Subsidiary Guarantees, and to use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs;
(f) 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, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
Holders of not less than a majority in principal amount of the outstanding
Senior Notes; provided, however, that if the payment within a reasonable time to
-------- -------
the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture and the Senior Subsidiary Guarantees, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding;
(g) the Trustee may execute any of the trusts or powers under this
Indenture or under the Senior Subsidiary Guarantees or perform any duties
hereunder or thereunder either directly or by or through agents (including any
Authenticating Agent), custodians, nominees or attorneys, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed by it with due care;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
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(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
hereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Principal Office of the Trustee, and such notice
references the Senior Notes and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder;
and
(k) the Trustee may request that the Corporation deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
SECTION 6.3 No Responsibility for Recitals, etc.
The recitals contained herein and in the Senior Notes (except in the
Certificate of Authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Corporation and the Guarantors and the Trustee
and the Authenticating Agent assume no responsibility for the correctness of the
same. The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture, of the Senior Subsidiary Guarantees
or of the Senior Notes. The Trustee and the Authenticating Agent shall not be
accountable for the use or application by the Corporation of any Senior Notes or
the proceeds of any Senior Notes authenticated and delivered by the Trustee or
the Authenticating Agent in conformity with the provisions of this Indenture.
SECTION 6.4 Trustee, Authenticating Agent, Certain Others May Own Senior
Notes.
The Trustee or any Authenticating Agent or any Paying Agent or any transfer
agent or any Senior Note Registrar in its individual or any other capacity, may
become the owner or pledgee of Senior Notes with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, transfer agent or
Senior Note registrar.
SECTION 6.5 Moneys to be Held in Trust.
Subject to the provisions of Section 11.4, all moneys received by the
Trustee or any Paying Agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any Paying Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Corporation. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time upon the written order of the Corporation, signed by the Chairman of the
Board of Directors, the President, any Vice President, the Treasurer or any
Assistant Treasurer of the Corporation.
SECTION 6.6 Compensation and Expenses of Trustee.
The Corporation and the Guarantors agree to pay to the Trustee from time to
time, and the Trustee shall be entitled to, compensation as agreed from time to
time between the Corporation and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Corporation and the Guarantors will pay or reimburse the Trustee
upon its request for all reasonable and necessary expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable and necessary
compensation and the expenses and disbursements of its counsel and of all
45
persons not regularly in its employ and any amounts paid by the Trustee to any
Authenticating Agent pursuant to Section 6.14) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Corporation and the Guarantors also agree to indemnify the Trustee (and its
officers, agents, directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense, including taxes (other
than taxes based on income of the Trustee) incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim (whether asserted by the Corporation, a
Holder or any other Person) of liability in the premises.
The Trustee shall have a lien prior to the Senior Notes as to all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 6.6, except with respect to funds held in trust
for the benefit of the Holders of particular Senior Notes.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(e) or Section 5.1(f), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 6.6 shall survive the termination of this
Indenture.
SECTION 6.7 Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.1 and 6.2, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Corporation shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 6.9 Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized and
doing business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal, State,
Territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 6.9 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
The Corporation may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Corporation, serve
as the Trustee.
46
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.9, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation or Removal of Trustee.
(a) The Trustee, or any successor trustee hereafter appointed, may at
any time resign by giving written notice of such resignation to the Corporation
and by mailing notice thereof to the Holders of the Senior Notes at their
addresses as they shall appear on the Senior Note Register. Upon receiving such
notice of resignation, the Corporation shall promptly appoint a successor
trustee by written instrument, in duplicate, executed by order of its Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation to the Holders, the resigning Trustee may
petition, at the expense of the Corporation, any court of competent jurisdiction
for the appointment of a successor trustee, or any Holder who has been a bona
fide holder of a Senior Note for at least six months may, subject to the
provisions of Section 5.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) If at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 after written request therefor by the Corporation or by
any Holder who has been a bona fide holder of a Senior Note for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Corporation or by any such Holder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a 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, the Corporation may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 5.9, any Holder who has been a bona fide holder of a
Senior 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. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Senior Notes then outstanding may at any time remove the Trustee and nominate a
successor trustee, which shall be deemed appointed as successor trustee unless
within 10 days after such nomination the Corporation objects thereto, in which
case the Trustee so removed or any Holder, upon the terms and conditions and
otherwise as provided in Section 6.10(a), may petition, at the expense of the
Corporation, any court of competent jurisdiction for an appointment of a
successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11 Acceptance by Successor Trustee.
47
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Corporation and to its predecessor
trustee an instrument accepting such appointment hereunder, 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, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Corporation or of the successor
trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 6.6, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Corporation shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Corporation shall mail notice of the succession of such
trustee hereunder to the Holders of the Senior Notes at their addresses as they
shall appear on the Senior Note Register. If the Corporation fails to mail such
notice within 10 days after the acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Corporation.
SECTION 6.12 Succession by Merger, etc.
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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Senior Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Senior Notes so authenticated; and if at that time any of the Senior Notes shall
not have been authenticated, any successor to the Trustee may authenticate such
Senior Notes either in the name of any predecessor hereunder or in the name of
the successor trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Senior Notes or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that
-------- -------
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Senior Notes in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13 Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 6.14 Authenticating Agents.
48
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Corporation with power to act on its behalf and
subject to its direction in the authentication and delivery of Senior Notes
issued upon exchange or transfer thereof as fully to all intents and purposes as
though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Senior Notes. Any such Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States or of any State or
Territory thereof or of the District of Columbia authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of at least
$5,000,000 and being subject to supervision or examination by federal, State,
Territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 6.14 the combined capital
and surplus of such corporation 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 an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.14, it shall resign immediately in the manner
and with the effect herein specified in this Section 6.14.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.14, without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authenticating
Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Corporation. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Corporation. Upon
receiving such a notice of resignation or upon such a termination, or if at any
time any Authenticating Agent shall cease to be eligible under this Section
6.14, the Trustee may, and upon the request of the Corporation shall, promptly
appoint a successor Authenticating Agent eligible under this Section 6.14, shall
give written notice of such appointment to the Corporation and shall mail notice
of such appointment to all Holder as the names and addresses of such Holders
appear on the Senior Note Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein.
The Corporation agrees to pay to any Authenticating Agent from time to
time reasonable compensation for its services.
ARTICLE 7
CONCERNING THE HOLDERS
SECTION 7.1 Action by Holders.
Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Senior Notes may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Holders in person or by agent or
proxy appointed in writing, or (b) by the record of such Holder voting in favor
thereof at any meeting of such Holders duly called and held in accordance with
the
49
provisions of Article Eight, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Holders.
If the Corporation shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the
Corporation may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
action, but the Corporation shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record date, but only
the Holders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of outstanding Senior Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the outstanding Senior Notes shall
be computed as of the record date; provided, however, that no such
-------- -------
authorization, agreement or consent by such Holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date. In soliciting
authorizations, agreements or consents from Holders, the Corporation may, at its
option but subject to applicable law, require that such authorizations,
agreements or consents be given on an irrevocable basis or, alternatively,
impose such limitations on the revocability of such authorizations, agreements
or consents as it determines.
SECTION 7.2 Proof of Execution by Holders.
Subject to the provisions of Sections 6.1, 6.2 and 8.5, proof of the
execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Senior Notes shall be proved by the Senior Note
Register or by a certificate of the Senior Note Registrar. The Trustee may
require such additional proof of any matter referred to in this Section 7.2 as
it shall deem necessary.
The record of any Holders' meeting shall be proved in the manner provided
in Section 8.6.
SECTION 7.3 Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Senior Note,
the Corporation, the Trustee, any Authenticating Agent, any Paying Agent, any
transfer agent and any Senior Note Registrar may deem the person in whose name
such Senior Note shall be registered upon the Senior Note Register to be, and
may treat him as, the absolute owner of such Senior Note (whether or not such
Senior Note shall be overdue) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and interest on such Senior Note
and for all other purposes; and neither the Corporation nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any transfer agent nor any Senior
Note Registrar shall be affected by any notice to the contrary. All such
payments so made to any Holder for the time being or upon his order shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Senior Note.
SECTION 7.4 Senior Notes Owned by Corporation Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal
amount of Senior Notes have concurred in any direction, consent or waiver under
this Indenture, Senior Notes which are owned by the Corporation or any other
obligor on the Senior Notes or by any Affiliate of the Corporation or of any
such other obligor on the Senior Notes shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
--------
purposes of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Senior Notes which a Responsible Officer
of the Trustee actually knows are so owned shall be so disregarded. Senior
Notes so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this
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Section 7.4 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Senior Notes and that the pledgee is not the
Corporation or any such other obligor or Affiliate of the Corporation or of any
such other obligor. In the case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 7.5 Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Senior Notes specified in this
Indenture in connection with such action, any Holder of a Senior Note (or any
Senior Note issued in whole or in part in exchange or substitution therefor) the
serial number of which is shown by the evidence to be included in the Senior
Notes the Holders of which have consented to such action may, by filing written
notice with the Trustee at the Principal Office of the Trustee and upon proof of
holding as provided in Section 7.2, revoke such action so far as concerns such
Senior Note (or so far as concerns the principal amount represented by any
exchanged or substituted Senior Note). Except as aforesaid any such action taken
by the Holder of any Senior Note shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Senior Note, and of any
Senior Note issued in exchange or substitution therefor, irrespective of whether
or not any notation in regard thereto is made upon such Senior Note or any
Senior Note issued in exchange or substitution therefor.
ARTICLE 8
HOLDERS' MEETINGS
SECTION 8.1 Purposes of Meetings.
A meeting of Holders of the Senior Notes may be called at any time and
from time to time pursuant to the provisions of this Article Eight for any of
the following purposes:
(a) to give any notice to the Corporation or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Holders pursuant to any of the provisions of Article Five;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article Six;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.2; or
(d) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of such Senior Notes
under any other provision of this Indenture or under applicable law.
SECTION 8.2 Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders to take any
action specified in Section 8.1, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the Holders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to Holder at their
addresses as they shall appear on the Senior Note Register. Such notice shall be
mailed not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
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SECTION 8.3 Call of Meetings by Corporation or Holders.
If at any time the Corporation pursuant to a resolution of the Board
of Directors, or the Holders of at least 10% in aggregate principal amount of
the Senior Notes then outstanding, shall have requested the Trustee to call a
meeting of Holders by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Corporation or such Holders may determine the time and the place for
such meeting and may call such meeting to take any action authorized in Section
8.1, by mailing notice thereof as provided in Section 8.2.
SECTION 8.4 Qualifications for Voting.
To be entitled to vote at any meeting of Holders a person shall (a) be
a Holder of one or more Senior Notes or (b) a person appointed by an instrument
in writing as proxy by a Holder of one or more such Senior Notes. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Corporation and its counsel.
SECTION 8.5 Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Senior Notes and of the
appointment of proxies (including by requiring signature guarantees), and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by Holders as provided in Section 8.3, in which case the
Corporation or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.4, at any meeting each Holder
or proxy therefor shall be entitled to one vote for each $1,000 principal amount
of Senior Notes held or represented by him; provided, however, that no vote
-------- -------
shall be cast or counted at any meeting in respect of any Senior Note challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Senior Notes held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other Holders. Any
meeting of Holders duly called pursuant to the provisions of Section 8.2 or 8.3
may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 8.6 Voting.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of such
Holders or of their representatives by proxy and the serial number or numbers of
the Senior Notes held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that
52
said notice was mailed as provided in Section 8.2. The record shall show the
serial numbers of the Senior Notes voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Corporation and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders.
The Corporation, the Guarantors and the Trustee may from time to time and
at any time enter into an indenture, indentures or guarantees supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as then
in effect), without the consent of the Holders, for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Corporation,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Corporation pursuant to Article
Ten hereof;
(b) to evidence the succession of another corporation to a Guarantor, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of such Guarantor pursuant to Article
Fifteen hereof;
(c) to add to the covenants of the Corporation or the Guarantors such
further covenants, restrictions or conditions for the protection of such Holders
of Senior Notes as the Board of Directors and the Trustee shall consider to be
for the protection of such Holders, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional covenants,
restrictions or conditions a Default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect of any such additional
-------- -------
covenant, restriction or condition such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to the Trustee
upon such default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein, in any Senior Subsidiary Guarantee or in any supplemental
indenture or guarantee which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture or guarantee;
(e) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee pursuant to the requirements of Section 6.11; or
(f) to make any change that does not adversely affect the rights of any
Holder in any material respect.
The Trustee is hereby authorized to join with the Corporation and the
Guarantors in the execution of any such supplemental indenture or guarantee, to
make any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer and assignment of any property
thereunder; provided that the Trustee
--------
53
shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture or guarantee which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture or guarantee authorized by the provisions of
this Section 9.1 may be executed by the Corporation, the Guarantors and the
Trustee without the consent of the Holders of any of the Senior Notes then
outstanding, notwithstanding any of the provisions of Section 9.2.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent (obtained and evidenced as provided in Section 7.1) of the
Holders of not less than a majority in aggregate principal amount of the Senior
Notes then outstanding, the Corporation and the Guarantors, when authorized by
their respective boards of directors or equivalent governing entities, and the
Trustee may from time to time and at any time enter into an indenture,
indentures or guarantees supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or guarantee or of modifying
in any manner the rights of the Holders of the Senior Notes; provided, however,
-------- -------
that no such supplemental indenture or guarantee shall, without the consent of
the Holders of each Senior Note affected thereby, (i) extend the Stated Maturity
of the Senior Notes, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof or any premium thereon,
or reduce any amount payable on redemption thereof or make the principal thereof
or any interest or premium thereon payable in any coin or currency other than
that provided in the Senior Notes, or impair or affect the right of any Holder
to institute suit for payment thereof or the right of repayment, if any, at the
option of the Holder, without the consent of the Holder of each Senior Note so
affected, (ii) reduce the percentage of Senior Notes the Holders of which are
required to consent to any such supplemental indenture, (iii) amend, change or
modify in any material respect the obligation of the Corporation to make and
consummate a Change of Control Offer in respect of a Change of Control that has
occurred or make and consummate an Asset Sale Offer with respect to any Asset
Sale that has been consummated; (iv) modify the seniority of the Senior Notes in
any respect; or (v) eliminate or modify in any manner a Guarantor's obligations
with respect to its Senior Subsidiary Guarantee which adversely affects Holders
in any material respect, except as contemplated in this Indenture.
Upon the request of the Corporation accompanied by a copy of a resolution
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture or guarantee, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Corporation and the Guarantors in the
execution of such supplemental indenture or guarantee unless such supplemental
indenture or guarantee affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture or guarantee. The Trustee may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture or guarantee executed
pursuant to this Article Nine is authorized or permitted by, and conforms to,
the terms of this Article Nine and that it is proper for the Trustee under the
provisions of this Article Nine to join in the execution thereof.
Promptly after the execution by the Corporation, the Guarantors and the
Trustee of any supplemental indenture or guarantee pursuant to the provisions of
this Section 9.2, the Trustee shall transmit, at the Corporation's expense, by
mail, first class postage prepaid, a notice, setting forth in general terms the
substance of such supplemental indenture or guarantee, to the Holders as their
names and addresses appear upon the Senior Note Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or
guarantee.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed supplemental indenture or
guarantee, but it shall be sufficient if such consent shall approve the
substance thereof.
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SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article Nine shall comply with the Trust Indenture Act, as then in effect. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article Nine, this Indenture shall be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Corporation, the Guarantors and the Holders of Senior Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.4 Notation on Senior Notes.
Senior Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Nine may bear
a notation in form approved by the Corporation as to any matter provided for in
such supplemental indenture. If the Corporation shall so determine, new Senior
Notes so modified as to conform, in the opinion of the Corporation, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Corporation, authenticated by the Trustee or the
Authenticating Agent and delivered in exchange for the Senior Notes then
outstanding.
SECTION 9.5 Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article Nine.
ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture, the Senior Subsidiary Guarantees or in
any of the Senior Notes shall prevent any consolidation or merger of the
Corporation with or into any other Person (whether or not affiliated with the
Corporation), or successive consolidations or mergers in which the Corporation
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property of the
Corporation or its successor or successors as an entirety, or substantially as
an entirety, to any other Person (whether or not affiliated with the Corporation
or its successor or successors) authorized to acquire and operate the same;
provided, however, that the Corporation hereby covenants and agrees that, upon
-------- -------
any such consolidation, merger, sale, conveyance, transfer or other disposition,
the due and punctual payment, in the case of the Corporation, of the principal
of and premium, if any, and interest on all of the Senior Notes in accordance
with the terms thereof, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
with respect to the Senior Notes or established with respect to the Senior Notes
to be kept or performed by the Corporation shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or into
which the Corporation shall have been merged, or by the entity which shall have
acquired such property (in each case, the "Surviving Entity"); provided,
---------------- ---------
further, that the Guarantors hereby covenant and agree that, upon any such
-------
consolidation, merger, sale, conveyance, transfer or other disposition, the
application of the Senior Subsidiary
55
Guarantees to the obligations of the Surviving Entity in respect of the Senior
Notes shall be expressly confirmed by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by the
Guarantors; provided, further, that after giving effect thereto, the Corporation
-------- -------
or the Surviving Entity, as the case may be, shall be able to incur at least
$1.00 of additional Indebtedness (other than Permitted Debt) in compliance with
the first paragraph of Section 3.11 and no Default shall have occurred and be
continuing hereunder.
SECTION 10.2 Successor Corporation to be Substituted for Corporation.
In case of any such consolidation, merger, conveyance or transfer and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and premium, if any, and interest on
all of the Senior Notes and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Corporation, such successor corporation shall succeed to and be
substituted for the Corporation, with the same effect as if it had been named as
the Corporation herein, and the Corporation thereupon shall be relieved of any
further liability or obligation hereunder or upon the Senior Notes. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of Harnischfeger Industries, Inc. (to be renamed Joy
Global Inc.), any or all of the Senior Notes issuable hereunder which
theretofore shall not have been signed by the Corporation and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
corporation instead of the Corporation and subject to all the terms, conditions
and limitations prescribed in this Indenture, the Trustee or the Authenticating
Agent shall authenticate and deliver any Senior Notes which previously shall
have been signed and delivered by the officers of the Corporation to the Trustee
or the Authenticating Agent for authentication, and any Senior Notes which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee or the Authenticating Agent for that purpose. All the Senior Notes so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Senior Notes theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Indentures had been
issued at the date of the execution hereof.
SECTION 10.3 Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, conveyance or transfer, and any assumption, permitted or required by the
terms of this Article Ten complies with the provisions of this Article Ten.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.1 Discharge of Indenture and Senior Subsidiary Guarantees.
When (a) the Corporation shall deliver to the Trustee for cancellation all
Senior Notes theretofore authenticated (other than any Senior Notes which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.8) and not theretofore canceled, or (b) all the Senior
Notes not theretofore canceled or delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Corporation shall deposit with the Trustee, in trust, funds sufficient
to pay at maturity or upon redemption all of the Senior Notes (other than any
Senior Notes which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.8) not theretofore canceled
or delivered to the Trustee for cancellation, including principal and premium,
if any, and interest due or to become due to such date of maturity or Redemption
Date, as the case may be, but excluding, however, the amount of any moneys
56
for the payment of principal of, and premium, if any, or interest on the Senior
Notes (1) theretofore repaid to the Corporation in accordance with the
provisions of Section 11.4, or (2) paid to any State or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Corporation shall also pay or cause to be paid all other sums payable
hereunder by the Corporation, then this Indenture and each Senior Subsidiary
Guarantee shall cease to be of further effect, except that the provisions of
Sections 2.5, 2.7, 2.8, 3.1, 3.2, 3.4, 6.6, 6.10 and 11.4 hereof, and the
obligations of the Guarantors with respect thereto pursuant to Article Fifteen,
shall survive until such Senior Notes shall mature and be paid. Thereafter,
Section 6.6, the obligations of the Guarantors with respect thereto pursuant to
Article Fifteen, and Section 11.4 shall survive, and the Trustee, on demand of
the Corporation accompanied by any Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Corporation, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture and
each Senior Subsidiary Guarantee; provided, however, that the Corporation and
-------- -------
the Guarantors hereby agree to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Senior Notes.
SECTION 11.2 Deposited Moneys and U.S. Government Obligations Held in
Trust.
Subject to the provisions of Section 11.4, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Sections 11.1 or 11.5 shall
be held in trust and applied by it to the payment, either directly or through
any Paying Agent (including the Corporation if acting as its own paying agent),
to the Holders of the Senior Notes for the payment of which such moneys or U.S.
Government Obligations have been deposited with the Trustee, of all sums due and
to become due thereon for principal, premium, if any, and interest.
SECTION 11.3 Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then held
by any Paying Agent of the Senior Notes (other than the Trustee) shall, upon
demand of the Corporation, be repaid to it or paid to the Trustee, and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 11.4 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any Paying Agent for
payment of the principal of, and premium, if any, or interest on Senior Notes
and not applied but remaining unclaimed by the Holders of Senior Notes for two
years after the date upon which the principal of and premium, if any, or
interest on such Senior Notes, as the case may be, shall have become due and
payable, shall be repaid to the Corporation by the Trustee or such Paying Agent
on written demand; and the Holder of any of the Senior Notes shall thereafter
look only to the Corporation for any payment which such Holder may be entitled
to collect and all liability of the Trustee or such Paying Agent with respect to
such moneys shall thereupon cease. At the time of the return of any such monies
to the Corporation, the Trustee or Paying Agent shall furnish the Corporation
with records in sufficient detail to permit the Corporation to identify the
Holders entitled to receive such monies.
SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
(a) The Corporation and the Guarantors shall be deemed to have been
Discharged (as defined below) from their respective obligations with respect to
the Senior Notes, and each Guarantor shall be deemed to have been Discharged
from its obligations under its Senior Subsidiary Guaranty, upon satisfaction of
the conditions set forth below:
(i) the Corporation shall have deposited or caused to be
deposited irrevocably with the Trustee or the Defeasance Agent (as defined
below) as trust funds in trust, specifically pledged as security for, and
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dedicated solely to, the benefit of the Holders of the Senior Notes (A)
money in an amount, or (B) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination of (A) and (B),
sufficient, in the opinion (with respect to (B) and (C)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee and the Defeasance Agent, if
any, to pay and discharge each installment of principal of, and interest
and premium, if any, on, the outstanding Senior Notes on the dates such
installments of principal, premium or interest are due;
(ii) if the Senior Notes are then listed on any national securities
exchange, the Corporation shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that the
exercise of the option under this Section 11.5 would not cause such Senior
Notes to be delisted from such exchange;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit and such deposit shall not
constitute a breach of the terms of any Bank Credit Facility; and
(iv) the Corporation shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that Holders
of the Senior Notes will not recognize income, gain or loss for United
States federal income tax purposes as a result of the exercise of the
option under this Section 11.5 and will be subject to United States federal
income tax on the same amount and in the same manner and at the same times
as would have been the case if such option had not been exercised, and such
opinion shall be accompanied by a private letter ruling to that effect
received from the United States Internal Revenue Service or a revenue
ruling pertaining to a comparable form of transaction to that effect
published by the United States Internal Revenue Service.
(b) The Corporation shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to this Section 11.5 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Senior
Notes.
(c) "Discharged"
----------
(i) when used with respect to the Corporation, means that the
Corporation shall be deemed to have paid and discharged the entire
indebtedness represented by, and obligations under, the Senior Notes and to
have satisfied all the obligations under this Indenture relating to the
Senior Notes (and the Trustee, at the expense of the Corporation, shall
execute proper instruments acknowledging the same), except: (A) the rights
of Holder to receive, from the trust fund described in clause (a)(i) above,
payment of the principal of and the interest and premium, if any, on such
Senior Notes when such payments are due; (B) the Corporation's obligations
under Sections 2.7, 2.8, 5.2, 6.6 and 11.4; and (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder; and
(ii) when used with respect to any Guarantor, means that such
Guarantor shall be deemed to have to have satisfied all its obligations
under this Indenture and its Senior Subsidiary Guarantee, except to the
extent that such obligations relate to Sections 11.5(b)(i)(A), (B) and (C)
above.
(d) "Defeasance Agent" means another financial institution which is
----------------
eligible to act as Trustee hereunder and which assumes all of the obligations of
the Trustee necessary to enable the Trustee to act hereunder. In the event such
a Defeasance Agent is appointed pursuant to this Section 11.5, the following
conditions shall apply:
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(i) The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth such
Defeasance Agent's rights and responsibilities;
(ii) The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U.S. Government
Obligations to meet the applicable conditions set forth in this Section
11.5;
(iii) The Trustee shall determine whether the Corporation shall be
deemed to have been Discharged from its respective obligations with respect
to the Senior Notes.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1 Indenture and Senior Notes Solely Corporate Obligations.
No recourse for the payment of the principal of, premium, if any, or
interest on any Senior Note, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Corporation or any Guarantor in this Indenture or in any
supplemental indenture or Senior Subsidiary Guarantee, or in any Senior Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Corporation, of such Guarantor or of any successor
corporation of the Corporation or of such Guarantor, either directly or through
the Corporation, through such Guarantor or through any successor corporation of
the Corporation or such Guarantor, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Senior Notes.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 Successors.
All the covenants, stipulations, promises and agreements in this Indenture
contained by the Corporation shall bind its successors and assigns whether so
expressed or not.
SECTION 13.2 Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Corporation or of any Guarantor shall and may be done and performed with like
force and effect by the like board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Corporation or of such
Guarantor, as the case may be.
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SECTION 13.3 Surrender of Corporation Powers.
The Corporation by instrument in writing executed by authority of two-
thirds of its Board of Directors and delivered to the Trustee may surrender any
of the powers reserved to the Corporation, and thereupon such power so
surrendered shall terminate both as to the Corporation and as to any successor
corporation.
SECTION 13.4 Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the Holders of Senior
Notes on the Corporation or any Guarantor may be given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Corporation with the
Trustee for the purpose) to the Corporation, ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer (with a copy to the
attention of the Corporation's General Counsel). Any notice, direction, request
or demand by any Holder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
office of the Trustee, addressed to the Trustee, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department.
SECTION 13.5 Governing Law.
This Indenture, the Senior Subsidiary Guarantees and the Senior Notes shall
be deemed to be contracts made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State, without regard to conflict of laws principles thereof.
SECTION 13.6 Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Corporation to the Trustee to take
any action under any of the provisions of this Indenture, the Corporation shall
furnish to the Trustee an Officers' Certificate stating that in the opinion of
the signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include: (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.7 Legal Holidays.
In any case where the date of payment of interest on or principal of the
Senior Notes will not be a Business Day in New York, New York, the payment of
such interest on or principal of the Senior Notes need not be made on such date
but may be made on the next succeeding Business Day, with the same force and
effect as if made on the date of payment and no interest shall accrue for the
period from and after such date.
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SECTION 13.8 Trust Indenture Act to Control.
(a) If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such required provision shall control.
(b) Notwithstanding the foregoing, any provisions contained in this
Indenture as to directions and waivers by Holders or impairment of Holders'
rights to payment shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such sections are hereby expressly excluded from
this Indenture and the Senior Notes, as permitted by the Trust Indenture Act.
SECTION 13.9 Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10 Execution in 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.
SECTION 13.11 Separability.
If any one or more of the provisions contained in this Indenture or in the
Senior Notes shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Senior Notes,
but this Indenture and such Senior Notes shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
SECTION 13.12 Assignment.
The Corporation will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly-owned Subsidiary of the Corporation, provided that, in the event of any
--------
such assignment, the Corporation will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the
benefit of the parties hereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties hereto.
ARTICLE 14
REDEMPTION OF SENIOR NOTES
SECTION 14.1 Applicability of Article.
Redemption of Senior Notes at the election of the Corporation, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article Fourteen.
SECTION 14.2 Optional Redemption.
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At any time prior to maturity, the Corporation may redeem the Senior Notes,
as a whole or from time to time in part, at the Redemption Price (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest, if any, thereon to the applicable Redemption Date, if redeemed during
the twelve month period beginning on April 1st of the years indicated below:
Year Percentage
---- -------------
2001 105.37500%
2002 104.03215%
2003 102.68750%
2004 101.34375%
2005 100.00000%
SECTION 14.3 Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Senior Notes pursuant to
Section 14.2 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Corporation of less than all the Senior Notes,
the Corporation shall, not less than 45 nor more than 60 days prior to the
Redemption Date fixed by the Corporation (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Senior Notes to be redeemed.
SECTION 14.4 Selection by Trustee of Senior Notes to Be Redeemed.
If less than all the Senior Notes are to be redeemed, the particular Senior
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Senior Notes then outstanding and not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of Senior Notes of a denomination larger than $1,000.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Senior Notes shall relate, in the
case of any Senior Notes redeemed or to be redeemed only in part, to the portion
of the principal amount of such Senior Notes which has been or is to be
redeemed.
SECTION 14.5 Notice of Redemption.
Notice of redemption 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 to be redeemed, at his address appearing in the Senior Note
Register.
All notices of redemption shall identify the Senior Notes to be redeemed
(including CUSIP Number) and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Senior Notes then outstanding are to be redeemed,
the identification (and, in the case of partial redemption of any Senior Notes,
the principal amounts) of the particular Senior Notes to be redeemed; and
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(d) that on the Redemption Date the Redemption Price will become due and
payable upon each such Senior Note to be redeemed and that interest thereon will
cease to accrue on and after said date.
Notice of redemption of Senior Notes to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation.
SECTION 14.6 Deposit of Redemption Price.
Prior to any Redemption Date, the Corporation shall deposit with the
Trustee or with a Paying Agent (or, if the Corporation is acting as its own
paying agent, segregate and hold in trust as provided in Section 3.4) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Senior Notes which are to be redeemed on that date.
SECTION 14.7 Senior Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Senior Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Corporation shall default in the payment of the Redemption Price and accrued
interest) such Senior Notes shall cease to bear interest. Upon surrender of any
such Senior Note for redemption in accordance with said notice, such Senior Note
shall be paid by the Corporation at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
-------- -------
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Senior Notes, or one or more Predecessor Senior
Notes, registered as such at the close of business on the relevant record dates
according to their terms and the provisions of Section 2.5.
If any Senior Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Senior Note.
SECTION 14.8 Senior Notes Redeemed in Part.
Any Senior Note which is to be redeemed only in part shall be surrendered
at an office or agency of the Corporation designated for that purpose pursuant
to Section 3.2 (with, if the Corporation or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Corporation and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Corporation shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Senior Note without service
charge, a new Senior Note or Senior 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 Senior Note so surrendered.
SECTION 14.9 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 3.12 hereof, the Corporation shall
be required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
------------
Business Days after the termination of the Offer Period (the "Purchase Date"),
-------------
the Corporation shall purchase the principal amount of Senior Notes required to
be purchased pursuant to Section 3.12 hereof (the "Offer Amount") or, if less
------------
than the Offer Amount has been tendered, all Senior Notes tendered in response
to the Asset Sale Offer. Payment for any Senior Notes so purchased shall be
made in the same manner as interest payments are made.
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If the Purchase Date is on or after an Regular Record Date and on or before
the related Interest Payment Date, any accrued and unpaid interest shall be paid
to the Person in whose name a Senior Note is registered at the close of business
on such Regular Record Date, and no additional interest shall be payable to
Holders who tender Senior Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Corporation shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Senior Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 14.9
and Section 3.12 hereof and the length of time the Asset Sale Offer shall remain
open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Senior Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Corporation defaults in making such payment, any
Senior Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Senior Note purchased pursuant to an
Asset Sale Offer may only elect to have all of such Senior Note purchased and
may not elect to have only a portion of such Senior Note purchased;
(f) that Holders electing to have a Senior Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Senior Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Senior Note
completed, or transfer the Senior Note by book-entry transfer, to the
Corporation, a Depositary Institution, if appointed by the Corporation, or a
Paying Agent at the address specified in the notice at least three days before
the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Corporation, the Depositary Institution or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Senior Note the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Senior Note purchased;
(h) that, if the aggregate principal amount of Senior Notes surrendered by
Holders exceeds the Offer Amount, the Corporation shall select the Senior Notes
to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Corporation so that only Senior Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Senior Notes were purchased only in part shall be
issued new Senior Notes equal in principal amount to the unpurchased portion of
the Senior Notes surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. on the Purchase Date, the Corporation shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Senior Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Senior Notes or portions thereof were accepted for payment by the Corporation in
accordance with the terms of this Section 14.9. The Corporation, the Depositary
Institution or the Paying Agent, as the case may be, shall promptly (but in any
case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Senior Notes
tendered by such Holder and accepted by
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the Corporation for purchase, and the Corporation shall promptly issue a new
Senior Note, and the Trustee, upon written request from the Corporation shall
authenticate and mail or deliver such new Senior Note to such Holder, in a
principal amount equal to any unpurchased portion of the Senior Note
surrendered. Any Senior Note not so accepted shall be promptly mailed or
delivered by the Corporation to the Holder thereof. The Corporation shall
publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 14.9, any purchase
pursuant to this Section 14.9 shall be made pursuant to the provisions of
Sections 14.3 through 14.8 hereof.
ARTICLE 15
SENIOR SUBSIDIARY GUARANTEES
SECTION 15.1 Guarantee.
Subject to this Article Fifteen, each Guarantor hereby, jointly and
severally, unconditionally guarantees to each Holder of a Senior Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Senior Notes or the obligations of the Corporation hereunder or thereunder,
that: (a) the principal of, premium, if any, and interest on the Senior Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if
any, and interest on the Senior Notes, if any, if lawful, and all other
obligations of the Corporation to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Senior Notes or any of such other obligations, that
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at Stated Maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Senior Notes or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Senior Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Corporation, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Corporation, any right to require a proceeding first against the
Corporation, protest, notice and all demands whatsoever and covenant that this
Senior Subsidiary Guarantee shall not be discharged except by complete
performance of the obligations contained in the Senior Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Corporation, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Corporation or the
Guarantors, any amount paid by any of the foregoing to the Trustee or such
Holder, this Senior Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five
hereof for the
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purposes of this Senior Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article Five hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Senior Subsidiary Guarantee.
The Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Senior Subsidiary Guarantee.
SECTION 15.2 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Senior Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Senior Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Senior Subsidiary Guarantee. To effectuate the
foregoing intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of such Guarantor under its Senior
Subsidiary Guarantee and this Article Fifteen shall be limited to the maximum
amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws (including under any Bank Credit Facility), and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article Fifteen, result in the obligations of such
Guarantor under its Senior Subsidiary Guarantee not constituting a fraudulent
transfer or conveyance.
SECTION 15.3 Execution and Delivery of Senior Subsidiary Guarantee.
To evidence its Senior Subsidiary Guarantee set forth in Section 15.1, each
Guarantor hereby agrees that a notation of such Senior Subsidiary Guarantee
substantially in the form included in Exhibit B hereto shall be endorsed by an
officer of such Guarantor on each Senior Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of such Guarantor by
its President or one of its Vice Presidents.
Each Guarantor hereby agrees that its Senior Subsidiary Guarantee set forth
in Section 15.1 shall remain in full force and effect notwithstanding any
failure to endorse on each Senior Note a notation of such Senior Subsidiary
Guarantee.
If an officer of a Guarantor whose signature is on this Indenture or on the
Senior Subsidiary Guarantee no longer holds that office at the time the Trustee
or Authenticating Agent authenticates the Senior Note on which a Senior
Subsidiary Guarantee is endorsed, the Senior Subsidiary Guarantee shall be,
nevertheless, valid.
The delivery of any Senior Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Senior Subsidiary
Guarantee set forth in this Indenture on behalf of the Guarantors.
In the event that the Corporation creates or acquires any new Domestic
Subsidiaries subsequent to the date of this Indenture, if required by Section
3.16, the Corporation shall cause such Domestic Subsidiaries to execute
supplemental Indentures to this Indenture and Senior Subsidiary Guarantees in
accordance with Section 3.16 and this Article Fifteen, to the extent applicable.
SECTION 15.4 Guarantors May Consolidate on Certain Terms.
Nothing contained in this Indenture, any Senior Subsidiary Guarantee or in
any of the Senior Notes shall prevent any consolidation or merger of any
Guarantor with or into any other Person, or successive consolidations or mergers
in which such Guarantor or its successor or successors shall be a party or
parties, or shall prevent any sale,
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conveyance, transfer or other disposition of the property of the Corporation or
its successor or successors as an entirety, or substantially as an entirety, to
any other Person authorized to acquire and operate the same; provided, however,
-------- -------
that each Guarantor hereby covenants and agrees that (a) the Person formed by or
surviving any such consolidation or merger (if other than a Guarantor or the
Corporation) shall unconditionally assume all the obligations of such Guarantor,
pursuant to a supplemental Indenture in form and substance reasonably
satisfactory to the Trustee, under the Senior Notes, this Indenture, and the
Senior Subsidiary Guarantee on the terms set forth herein or therein, and (b)
immediately after giving effect to such transaction, no Default or Event of
Default shall exist.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental Indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Senior
Subsidiary Guarantee endorsed upon the Senior Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Senior Subsidiary Guarantees to be endorsed upon all of the
Senior Notes issuable hereunder which theretofore shall not have been signed by
the Corporation and delivered to the Trustee. All the Senior Subsidiary
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Senior Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Senior Subsidiary Guarantees had been issued at the date of the
execution hereof.
Except as set forth in Articles Three and Ten hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Senior Notes shall prevent any consolidation or merger of a Guarantor with or
into the Corporation or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Corporation or another Guarantor.
SECTION 15.5 Releases Following Sale of Assets.
In the event of (a) a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise or (b) a sale or other
disposition of all of the Capital Stock of any Guarantor, then such Guarantor
(in the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the capital stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Senior Subsidiary Guarantee. Upon delivery by the
Corporation to the Trustee of an Officers' Certificate and an Opinion of Counsel
to the effect that such sale or other disposition was made by the Corporation in
accordance with the applicable provisions of this Indenture, the Trustee shall
execute any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Senior Subsidiary Guarantee.
Any Guarantor not released from its obligations under its Senior Subsidiary
Guarantee shall remain liable for the full amount of principal of, premium, if
any, and interest on the Senior Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article Fifteen.
* * * * *
67
The Trustee hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions herein above set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, all as of
the day and year first above written.
HARNISCHFEGER INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
BNY MIDWEST TRUST COMPANY, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Its: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
AMERICAN ALLOY CORPORATION, as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
AMERICAN LONGWALL FACE CONVEYORS INC., as
Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
AMERICAN LONGWALL, INC., as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
AMERICAN LONGWALL REBUILD, INC., as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
AMERICAN LONGWALL ROOF SUPPORTS, INC., as
Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
BENEFIT, INC., as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
▇▇▇▇▇▇ PARK INDUSTRIES INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Secretary and Treasurer
FIELD REPAIR SERVICES, LLC, as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Secretary
HARNISCHFEGER CORPORATION a/k/a P&H Mining and
a/k/a Harnco, as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Secretary
* * * SIGNATURE PAGE * * *
HARNISCHFEGER CREDIT CORPORATION, as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
HARNISCHFEGER TECHNOLOGIES, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Secretary and Treasurer
HARNISCHFEGER WORLD SERVICES CORPORATION, as
Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
HCHC, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Secretary and Treasurer
HCHC UK HOLDINGS, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Secretary and Treasurer
HIHC, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Secretary and Treasurer
* * * SIGNATURE PAGE * * *
J.P.P., INC.(f/k/a J.P.D.,Inc.), as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
JOY INTERNATIONAL SALES CORPORATION, as
Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Secretary
JOY MM DELAWARE, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Secretary and Treasurer
JOY POWER PRODUCTS, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
JOY TECHNOLOGIES INC. d/b/a Joy Mining Machinery,
as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
JOY TECHNOLOGIES DELAWARE INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Secretary and Treasurer
* * * SIGNATURE PAGE * * *
JTI UK HOLDINGS, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Secretary and Treasurer
MINING SERVICES, INC., as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
PEABODY & WIND ENGINEERING CORPORATION, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
RCHH, INC., as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
SOUTH SHORE CORPORATION, as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
SOUTH SHORE DEVELOPMENT, LLC, as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Secretary
*** SIGNATURE PAGE ***
THE HORSBURGH & ▇▇▇▇▇ COMPANY, as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & Assistant Secretary
* * * SIGNATURE PAGE * * *
EXHIBIT A
---------
(Form of Face of Senior Note)
JOY GLOBAL INC.
10.75% Senior Notes Due 2006
CUSIP No. 481165 AA 6
No. __________ $________
Joy Global Inc. (formerly known as Harnischfeger Industries, Inc.), a
Delaware corporation (herein called the "Corporation", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________________, or registered assigns,
the principal sum of _____________________ Dollars on April 30, 2006, and to pay
interest thereon from the Effective Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on April 30th and October 31st in each year, commencing October 31, 2001, at the
rate of 10.75% per annum, until the principal hereof is paid or made available
for payment. 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 Senior Note (or one or more Predecessor Senior Notes)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the April 15th or October 15th, 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
Senior Note (or one or more Predecessor Senior 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 Holder not 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 Senior Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture. Payment
of the principal of, premium, if any, and interest on this Senior Note will be
made at the office or agency of the Corporation maintained for that purpose in
New York, New York, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Corporation payment
-------- -------
of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Senior Note Register. Interest
shall be calculated on the basis of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this Senior Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Senior
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A - 1
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
_________________________
By_______________________
Attest:
_______________________
(Form of Reverse of Senior Note)
This Senior Note is one of a duly authorized issue of Senior Notes of the
Corporation designated as its 10.75% Senior Notes Due 2006 (herein called the
"Senior Notes"), limited in aggregate principal amount to $167,000,000, issued
and to be issued under an Indenture, dated as of July 10, 2001 (herein called
the "Indenture"), between the Corporation, the Guarantors and BNY Midwest Trust
Company, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Corporation, the Trustee and the Holders of the Senior Notes and of the terms
upon which the Senior Notes are, and are to be, authenticated and delivered.
The Senior Notes are subject to redemption upon not less than 30 days nor
more than 60 days' notice by mail, at any time, as a whole or in part, at the
election of the Corporation, at the Redemption Price equal to the percentage of
the principal amount set forth in the Indenture, together in the case of any
such redemption with accrued interest and premium, if any, to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Senior Notes, or one or
more predecessor Senior Notes, of record at the close of business on the
relevant record dates referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption of this Senior Note in part only, a new Senior
Note or Senior Notes for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of all
the Senior Notes may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Senior Notes under the
Indenture at any time by the Corporation and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Senior Notes then
outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Senior Notes then
outstanding, on behalf of the Holders of all the Senior Notes, to waive
compliance by the Corporation with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Senior Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Senior Note and of
any Senior Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Senior Note.
A - 2
No reference herein to the Indenture and no provision of this Senior Note
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Senior Note at the times, place and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Senior Note is registrable in the Senior Note
Register, upon surrender of this Senior Note for registration of transfer at the
office or agency of the Corporation in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Corporation and the Senior Note registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Senior
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Senior Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Senior Notes are
exchangeable for a like aggregate principal amount of Senior Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Senior Note for registration of transfer,
the Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Senior Note is registered as the owner
hereof for all purposes, whether or not this Senior Note be overdue, and neither
the Corporation, the Trustee nor any such agent shall be affected by notice to
the contrary.
All terms used in this Senior Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Senior Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by and construed
in accordance with the laws of said State, without regard to conflict of laws
principles thereof.
A - 3
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the Corporation
pursuant to Section 3.12 or Section 3.14 of the Indenture, check the box below:
[_] Section 3.12 [_] Section 3.14
If you want to elect to have only part of the Senior Note purchased by the
Corporation pursuant to Section 3.12 or Section 3.14 of the Indenture, state the
amount you elect to have purchased: $_____________
Date:____________
Your Signature:________________________________
(Sign exactly as your name appears on the face of
this Senior Note)
Tax Identification No:_________________________________
SIGNATURE GUARANTEE:___________________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the 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 Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A - 4
EXHIBIT B
---------
(Form of Notation of Senior Subsidiary Guarantee)
For value received, each Guarantor (which term includes any successor Person
under the Indenture) has, jointly and severally, unconditionally guaranteed, to
the extent set forth in the Indenture and subject to the provisions in the
Indenture, dated as of July 10, 2001 (the "Indenture") among Joy Global Inc.
---------
(formerly known as Harnischfeger Industries, Inc.) (the "Corporation"), the
-----------
Guarantors listed on Schedule I thereto and BNY Midwest Trust Company, as
Trustee (the "Trustee"), (a) the due and punctual payment of the principal of,
-------
premium, if any, and interest on the Senior Notes (as defined in the Indenture),
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, if any, to the
extent permitted by law, interest, and the due and punctual performance of all
other obligations of the Corporation to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of
time of payment or renewal of any Senior Notes or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders and
the Trustee pursuant to the Senior Subsidiary Guarantee and the Indenture are
expressly set forth in Article Fifteen of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Senior Subsidiary Guarantee.
Each Holder of a Senior Note, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee, on behalf of
such Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee attorney-in-fact of such Holder for such purpose; provided, however,
-------- -------
that the indebtedness evidenced by this Senior Subsidiary Guarantee shall cease
to be so subordinated and subject in right of payment upon any defeasance of
this Senior Note in accordance with the provisions of the Indenture.
[Name of Guarantor(s)]
By: ____________________________
Name:
Title:
B-1
EXHIBIT C
---------
(Form of Supplemental Indenture
To Be Delivered by Subsequent Guarantors)
Supplemental Indenture (this "Supplemental Indenture"), dated as of
----------------------
[______], among _____ (the "Guaranteeing Subsidiary"), a subsidiary of Joy
-----------------------
Global Inc. (formerly known as Harnischfeger Industries, Inc.) (or its permitted
successor), a Delaware corporation (the "Corporation"), the Corporation, the
-----------
other Guarantors (as defined in the Indenture referred to herein) and BNY
Midwest Trust Company, as Trustee under the Indenture referred to below (the
"Trustee").
-------
W I T N E S S E T H
WHEREAS, the Corporation has heretofore executed and delivered to the
Trustee an Indenture (the "Indenture"), dated as of July 10, 2001 providing
---------
for the issuance of an aggregate principal amount of up to $167,000,000 of
10.75% Senior Notes Due 2006 (the "Senior Notes");
------------
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
Indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Corporation's obligations under the Senior Notes and the
Indenture on the terms and conditions set forth herein (the "Senior Subsidiary
-----------------
Guarantee"); and
---------
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Senior Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally guarantee to each Holder of a Senior Note authenticated and
delivered by the Trustee or Authenticating Agent and to the Trustee
and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Senior Notes or the obligations
of the Corporation hereunder or thereunder, that:
(i) the principal of, premium, if any, and interest on the Senior
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal of, premium, if any, and interest on the Senior Notes, if
any, if lawful, and all other obligations of the Corporation to the
Holders or the Trustee hereunder or thereunder will be promptly paid
in full or performed, all in accordance with the terms hereof and
thereof; and
(ii) in case of any extension of time of payment or renewal of any
Senior Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately.
C - 1
(b) The obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Senior Notes or the
Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Senior Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Corporation,
any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
Guarantor.
(c) The following is hereby waived: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Corporation, any right to require a proceeding first
against the Corporation, protest, notice and all demands whatsoever.
(d) This Senior Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Senior Notes and
the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to
return to the Corporation, the Guarantors, or any custodian, Trustee,
liquidator or other similar official acting in relation to either the
Corporation or the Guarantors, any amount paid by any of the foregoing to
the Trustee or such Holder, this Senior Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Five of the Indenture for
the purposes of this Senior Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any declaration
of acceleration of such obligations as provided in Article Five of the
Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Senior Subsidiary Guarantee.
(h) The Guarantors shall have the right to seek contribution from any non-
paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Senior Subsidiary Guarantee.
(i) Pursuant to Section 15.2 of the Indenture, the obligations of the
Guaranteeing Subsidiary hereunder and under Article Fifteen of the
Indenture shall be limited to the maximum amount as will, after giving
effect to such maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable bankruptcy or fraudulent
conveyance laws (including under any Bank Credit Facility), and after
giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article Fifteen of the Indenture,
result in the obligations of such Guarantor under its Senior Subsidiary
Guarantee not constituting a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Senior Subsidiary Guarantee shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Note a notation of such
Senior Subsidiary Guarantee.
C-2
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such Guarantor
unless:
(i) subject to Section 15.4 of the Indenture, the Person formed by
or surviving any such consolidation or merger (if other than a
Guarantor or the Corporation) unconditionally assumes all the
obligations of such Guarantor, pursuant to a supplemental Indenture in
form and substance reasonably satisfactory to the Trustee, under the
Senior Notes, the Indenture and the Senior Subsidiary Guarantee on the
terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by Supplemental Indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Senior Subsidiary Guarantee endorsed upon the Senior Notes
and the due and punctual performance of all of the covenants and conditions
of the Indenture to be performed by the Guarantor, such successor
corporation shall succeed to and be substituted for the Guarantor with the
same effect as if it had been named herein as a Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the Senior
Subsidiary Guarantees to be endorsed upon all of the Senior Notes issuable
hereunder which theretofore shall not have been signed by the Corporation
and delivered to the Trustee. All the Senior Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under the
Indenture as the Senior Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of the Indenture as though all of such
Senior Subsidiary Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles Three and Ten of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Senior Notes shall prevent any consolidation or
merger of a Guarantor with or into the Corporation or another Guarantor, or
shall prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety to the Corporation or another
Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of any Guarantor, then such
Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such Guarantor)
or the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor)
will be released and relieved of any obligations under its Senior
Subsidiary Guarantee. Upon delivery by the Corporation to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Corporation in accordance with
the provisions of the Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from
its obligations under its Senior Subsidiary Guarantee.
(b) Any Guarantor not released from its obligations under its Senior
Subsidiary Guarantee shall remain liable for the full amount of principal
of, premium, if any, and interest on the Senior Notes and for the other
obligations of any Guarantor under the Indenture as provided in Article
Fifteen of the Indenture.
C-3
6. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as
such, shall have any liability for any obligations of the Corporation or any
Guaranteeing Subsidiary under the Senior Notes, any Senior Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Senior Notes by accepting a Senior Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Senior Notes. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
10 THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the recitals contained herein, all of which recitals are
made solely by the Guaranteeing Subsidiary and the Corporation.
C-4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ________ __, ____
[GUARANTEEING SUBSIDIARY]
By: _________________________________
Name:
Title:
JOY GLOBAL INC.
By: _________________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _________________________________
Name:
Title:
BNY MIDWEST TRUST COMPANY
as Trustee
By: _________________________________
Name:
Title:
Schedule I
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SCHEDULE OF GUARANTORS
----------------------
The following schedule lists each Guarantor under the Indenture as of the date
of this Indenture:
(1) Harnischfeger Industries, Inc. (to be renamed Joy Global Inc.),
a Delaware corporation
(2) American Alloy Corporation, an Ohio corporation
(3) American Longwall Face Conveyors Inc., a Delaware corporation
(4) American Longwall, Inc., a Delaware corporation
(5) American Longwall Rebuild, Inc., a Delaware corporation
(6) American Longwall Roof Supports, Inc., a New York corporation
(7) Benefit, Inc., a Delaware corporation
(8) ▇▇▇▇▇▇ Park Industries Inc., a Delaware corporation
(9) Field Repair Services, LLC, a Delaware limited liability company
(10) Harnischfeger Corporation, a Delaware corporation
(11) Harnischfeger Credit Corporation, a Delaware corporation
(12) Harnischfeger Technologies, Inc., a Delaware corporation
(13) Harnischfeger World Services Corporation, a Delaware corporation
(14) HCHC, Inc., a Delaware corporation
(15) HCHC UK Holdings, Inc., a Delaware corporation
(16) HIHC, Inc., a Delaware corporation
(17) J.P.P., Inc., a Delaware corporation
(18) Joy International Sales Corporation, a Delaware corporation
(19) Joy MM Delaware, Inc., a Delaware corporation
(20) Joy Power Products, Inc., a Pennsylvania corporation
(21) Joy Technologies Inc., a Delaware corporation
(22) Joy Technologies Delaware Inc., a Delaware corporation
(23) JTI UK Holdings, Inc., a Delaware corporation
(24) Mining Services, Inc., a Delaware corporation
(25) Peabody & Wind Engineering Corporation, a Pennsylvania
corporation
(26) RCHH, Inc., a Delaware corporation
(27) South Shore Corporation, a Wisconsin corporation
(28) South Shore Development, LLC, a Delaware limited liability
company
(29) The Horsburgh & ▇▇▇▇▇ Company, an Ohio corporation