1
EXHIBIT 4.1
-------------------------------------------------------------------------------
▇. ▇. TOWER CORPORATION,
As Issuer,
TOWER AUTOMOTIVE, INC.,
As Parent Guarantor,
THE SUBSIDIARY GUARANTORS PARTY HERETO FROM TIME TO TIME,
AND
UNITED STATES TRUST COMPANY OF NEW YORK,
As Trustee
--------------------------------------
EURO INDENTURE
Dated as of July 25, 2000
--------------------------------------
*150,000,000 aggregate principal amount of
9.25% Senior Notes due 2010
-------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Incorporation by Reference.............................................1
Section 1.1. Definitions.............................................................1
Section 1.2. Other Definitions......................................................11
Section 1.3. Incorporation by Reference of Trust Indenture Act......................12
Section 1.4. Rules of Construction..................................................12
ARTICLE II The Securities........................................................................13
Section 2.1. Form, Dating and Terms.................................................13
Section 2.2. Execution and Authentication...........................................19
Section 2.3. Registrar and Paying Agent.............................................20
Section 2.4. Paying Agent To Hold Money in Trust....................................20
Section 2.5. Securityholder Lists...................................................21
Section 2.6. Transfer and Exchange..................................................21
Section 2.7. Form of Certificate to be Delivered in Connection
with Transfers to Institutional Accredited Investors...............25
Section 2.8. Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Regulation S............................27
Section 2.9. Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Rule 144A...............................28
Section 2.10. Mutilated, Destroyed, Lost or Stolen Securities.......................29
Section 2.11. Temporary Securities..................................................30
Section 2.12. Cancellation..........................................................30
Section 2.13. Payment of Interest; Defaulted Interest...............................31
Section 2.14. Computation of Interest...............................................32
Section 2.15. CUSIP Numbers.........................................................32
ARTICLE III Covenants.............................................................................33
Section 3.1. Payment of Principal, Premium, if any, and Interest,
if any.............................................................33
Section 3.2. Maintenance of Office or Agency........................................33
Section 3.3. Money for Securities Payments to be Held in Trust;
Unclaimed Money....................................................33
Section 3.4. Corporate Existence....................................................35
Section 3.5. Reports by the Company.................................................35
Section 3.6. Annual Review Certificate; Notice of Defaults or
Events of Default..................................................36
Section 3.7. Books of Record and Account............................................36
Section 3.8. Limitation on Liens....................................................36
Section 3.9. Limitation on Sale and LeaseBack Transactions..........................38
ARTICLE IV Consolidation, Merger or Sale by the Company .........................................39
-ii-
3
Page
Section 4.1. Consolidation, Merger or Sale of Assets Permitted......................39
ARTICLE V Redemption of Securities..............................................................40
Section 5.1. Applicability of Article...............................................40
Section 5.2. Election to Redeem; Notice to Trustee..................................40
Section 5.3. Selection of Securities to be Redeemed.................................40
Section 5.4. Notice of Redemption...................................................41
Section 5.5. Deposit of Redemption Price............................................41
Section 5.6. Securities Payable on Redemption Date..................................42
Section 5.7. Securities Redeemed in Part............................................42
Section 5.8. Optional Redemption....................................................42
Section 5.9. Offer to Repurchase Upon a Change of Control...........................43
ARTICLE VI Defaults and Remedies.................................................................45
Section 6.1. Events of Default......................................................45
Section 6.2. Acceleration; Rescission and Annulment.................................47
Section 6.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.........................................................47
Section 6.4. Trustee May File Proofs of Claim.......................................48
Section 6.5. Trustee May Enforce Claims Without Possession of
Securities.........................................................48
Section 6.6. Delay or Omission Not Waiver...........................................48
Section 6.7. Waiver of Past Defaults................................................49
Section 6.8. Control by Majority....................................................49
Section 6.9. Limitation on Suits by Holders.........................................49
Section 6.10. Rights of Holders to Receive Payment..................................50
Section 6.11. Application of Money Collected........................................50
Section 6.12. Restoration of Rights and Remedies....................................51
Section 6.13. Rights and Remedies Cumulative........................................51
Section 6.14. Waiver of Usury, Stay or Extension Laws...............................51
Section 6.15. Undertaking for Costs.................................................51
ARTICLE VII Trustee...................................................................................52
Section 7.1. Certain Duties and Responsibilities of the Trustee.....................52
Section 7.2. Rights of Trustee......................................................52
Section 7.3. Trustee May Hold Securities............................................54
Section 7.4. Money Held in Trust....................................................54
Section 7.5. Trustee's Disclaimer...................................................54
Section 7.6. Notice of Defaults.....................................................54
Section 7.7. Reports by Trustee to Holders..........................................54
Section 7.8. Securityholder Lists...................................................55
Section 7.9. Compensation and Indemnity.............................................55
Section 7.10. Replacement of Trustee................................................56
-iii-
4
Page
Section 7.11. Acceptance of Appointment by Successor. .............................57
Section 7.12. Eligibility; Disqualification.........................................58
Section 7.13. Merger, Conversion, Consolidation or Succession to
Business. .......................................................58
Section 7.14. Appointment of Authenticating Agent...................................58
ARTICLE VIII Discharge of Indenture; Defeasance.......................................................60
Section 8.1. Termination of Company's and Guarantors'
Obligations Under this Indenture...................................60
Section 8.2. Application of Trust Funds.............................................61
Section 8.3. Company's Option to Effect Defeasance or Covenant
Defeasance. .......................................................61
Section 8.4. Defeasance and Discharge...............................................61
Section 8.5. Covenant Defeasance....................................................62
Section 8.7. Deposited Money and Government Obligations to Be
Held in Trust......................................................64
Section 8.8. Repayment to Company...................................................64
Section 8.9. Indemnity for Government Obligations...................................65
ARTICLE IX Supplemental Indentures...............................................................65
Section 9.1. Supplemental Indentures Without Consent
of Holders.........................................................65
Section 9.2. Supplemental Indentures with Consent of Holders........................66
Section 9.3. Compliance with Trust Indenture Act....................................67
Section 9.4. Execution of Supplemental Indentures...................................67
Section 9.5. Effect of Supplemental Indentures .....................................67
ARTICLE X Guarantees............................................................................68
Section 10.1. Guarantees. ..........................................................68
Section 10.2. Obligations of Guarantors Unconditional...............................70
Section 10.3. Limitation on Guarantors' Liability...................................70
Section 10.4. Releases of Guarantees. .............................................70
Section 10.5. Application of Certain Terms and Provisions to
Guarantors.......................................................71
Section 10.6. Additional Guarantors.................................................71
ARTICLE XI Miscellaneous.........................................................................72
Section 11.1. Trust Indenture Act Controls..........................................72
Section 11.2. Notices...............................................................72
Section 11.3. Communication by Holders with other Holders...........................73
Section 11.4. Certificate and Opinion as to Conditions Precedent....................73
Section 11.5. Statements Required in Certificate or Opinion.........................73
Section 11.6. When Securities Disregarded...........................................74
-iv-
5
Page
Section 11.7. Rules by Trustee, Paying Agent and Registrar..........................74
Section 11.8. Legal Holidays........................................................74
Section 11.9. GOVERNING LAW.........................................................74
Section 11.10. No Recourse Against Others...........................................75
Section 11.12. Multiple Originals...................................................75
Section 11.13. Variable Provisions..................................................75
Section 11.14. Qualification of Indenture...........................................75
Section 11.15. Table of Contents; Headings..........................................75
Section 11.16. Separability.........................................................75
EXHIBIT A Form of the Initial Security
EXHIBIT B Form of the Exchange Security
-v-
6
CROSS-REFERENCE TABLE
TIA Section Indenture Section
310 (a) (1)........................................................................... 7.12
(a) (2)........................................................................... 7.12
(a) (3)........................................................................... 1.3
(a) (4)........................................................................... 1.3
(b)............................................................................... 7.10; 7.12
311 (a)............................................................................... 1.3
(b)............................................................................... 1.3
312 (a)............................................................................... 7.8
(b)............................................................................... 11.3
(c)............................................................................... 11.3
313 (a)............................................................................... 7.7
(b)............................................................................... 7.7
(c)............................................................................... 7.7
(d)............................................................................... 7.7
314 (a)............................................................................... 3.5; 3.6
(b)............................................................................... 3.5
(c)............................................................................... 11.4
(d)............................................................................... 3.5
(e)............................................................................... 11.5
315 (a)............................................................................... 7.1
(b)............................................................................... 7.6
(c)............................................................................... 7.1
(d)............................................................................... 7.1
(e)............................................................................... 6.15
316 (a) (last......................................................................... 11.6
sentence)
(a) (1) (A)....................................................................... 6.2; 6.8
(a) (1) (B)....................................................................... 6.7
(a) (2)........................................................................... 1.3
(b)............................................................................... 6.9; 6.10
317 (a) (1)........................................................................... 6.3
(a) (2)........................................................................... 6.4
(b)............................................................................... 3.3
318 (a)............................................................................... 11.1
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
-vi-
7
INDENTURE, dated as of July 25, 2000, among ▇. ▇. Tower
Corporation, a Michigan corporation (the "Company"), Tower Automotive, Inc., a
Delaware corporation ("Parent"), the companies listed on the signature pages
hereto that are subsidiaries of the Company (the "Subsidiary Guarantors," and
together with Parent, the "Guarantors") and United States Trust Company of New
York, a New York corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (i) the
Company's 9.25% Senior Notes due 2010 (the "Initial Securities"), (ii) if and
when issued in exchange for Initial Securities as provided in the Registration
Rights Agreement (as hereinafter defined), the Company's 9.25% Senior Notes due
2010 (the "Exchange Securities") and (iii) if and when issued as provided in the
Registration Rights Agreement, the Private Exchange Securities (as defined in
the Registration Rights Agreement; together with Initial Securities and Exchange
Securities, the "Securities").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
-----------
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any 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.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Attributable Debt," when used in connection with a Sale and Lease-Back
Transaction, shall mean, as of any particular time, the lesser of (i) the fair
value (as determined by the Board of Directors) of the property subject to such
arrangement and (ii) the then-present value, discounted at the rate per annum
equal to the rate of interest implicit in the lease involved in such Sale and
Lease-Back Transaction, as determined in good faith by the Company, of the
obligation of a lessee for net rental payments during the remaining term of any
lease in respect of such property (including any period for which such lease has
been extended or may, at the option of the lessor, be extended). The term "net
rental payments" under any lease for any period shall mean the sum of the rental
payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes,
-1-
8
assessments, water rates or similar charges required to be paid by such lessee
thereunder or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales, maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 7.14.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13 (d) (3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon occurrence of a subsequent condition (other than a
condition that the Holders waive one or more provisions of this Indenture).
"Board of Directors" means (i) with respect to a corporation, the board
of directors of the corporation, (ii) with respect to a partnership, the board
of directors of the general partner of the partnership, and (iii) with respect
to any other Person, the board or committee of such Person serving a similar
function.
"Board Resolution" means a copy of a resolution of the Board of
Directors of the Company or the equivalent body of any Guarantor, as applicable,
certified by the Secretary or an Assistant Secretary of the Company, or the
equivalent officer of any Guarantor, as applicable, to have been duly adopted by
the Board of Directors of the Company or the equivalent body of any Guarantor,
as applicable, and to be in full force and effect on the date of the
certificate, and delivered to the Trustee.
"Book-Entry Depositary" means Deutsche Bank AG, London branch, in its
capacity as book-entry depositary pursuant to the terms of the Deposit
Agreement.
"Business Day," means a day (other than Saturday or Sunday) on which
Euroclear, Clearstream and the banks in New York are open for business.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or
substantially all of the properties or assets of the Company
and its Subsidiaries taken as a whole to any "person" (as that
term is used in Section 13 (d) (3) of the Exchange Act);
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
-2-
9
(3) the first day on which Parent ceases, either directly or
indirectly, to own all of the outstanding equity interests of
the Company;
(4) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), other than an
employee trust sponsored by the Company, becomes the
Beneficial Owner, directly or indirectly, of more than 50% of
the voting stock of the Company, measured by voting power
rather than number of shares; or
(5) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors.
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" means the date on which the Initial Securities are
issued.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture 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.
"Company" means ▇. ▇. Tower Corporation, a Michigan corporation, or a
successor corporation.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Financial Officer,
any Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer or the Controller of the Company.
"Consolidated Assets" means the Company's assets, determined in
accordance with GAAP and consolidated for financial reporting purposes in
accordance with GAAP, such assets to be valued at book value.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of the
Indenture; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office" means the office of the Trustee in which at
any particular
-3-
10
time its corporate trust business shall be principally administered, which
office at the date hereof is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration.
"Credit Agreement" means that certain Credit Agreement, dated on or
about July 25, 2000, by and among the Company, various direct and indirect
wholly owned Subsidiaries of the Company and Bank of America, N.A., as a lender
and as administrative agent, and The Chase Manhattan Bank, as a lender and as
syndication agent, and certain other lenders named therein, providing for up to
$1.15 billion of aggregate borrowings, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time.
"Debt" means indebtedness for borrowed money.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section 2.13.
"Deposit Agreement" means the Deposit Agreement, dated July 25, 2000
between the Company and Deutsche Bank Luxembourg S.A., as Book-Entry Depositary,
with respect to the Global Notes, as amended from time to time in accordance
with the terms hereof.
"Depositary" shall mean a common depositary for Euroclear and
Clearstream or their nominees and successors.
"Depositary Interest" means a certificate or depositary interest
representing 100% beneficial interest in a Global Note.
"Euro" or "(U)" refers to the single European currency introduced
within the member states of the European Community on January 1, 1999.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York (Brussels
office) as operator of the Euroclear system and any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" shall have the meaning set forth in the Registration
Rights Agreement.
"Exchange Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Exempted Indebtedness" means, as of any particular time, the sum of:
-4-
11
(1) the aggregate principal amount of all then outstanding
Indebtedness for borrowed money of the Company and its
Restricted Subsidiaries incurred after the date of the
Indenture and secured by any Lien, other than those permitted
under any of clauses (a) through (i) of Section 3.8 hereof
under the heading "Limitation on Liens;" and
(2) all Attributable Debt pursuant to Sale and Lease-Back
Transactions incurred by the Company and its Restricted
Subsidiaries after the date of the Indenture, at that time
outstanding, other than that which is not prohibited by or is
permitted pursuant to clause (a) or (b) of Section 3.9 hereof
under the heading "Limitation on Sale and Lease-Back
Transactions."
"Funded Indebtedness" means all Indebtedness of the Company and its
Restricted Subsidiaries maturing by its terms more than one year after, or which
is renewable or extendable at the option of the Company for a period ending more
than one year after, the date as of which Funded Indebtedness is being
determined.
"GAAP" means such accounting principles as are generally accepted in
the United States at the date of this Indenture.
"Government Obligations" means securities which are (i) direct
obligations of the United States, 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, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depositary 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 depositary
receipt from any amount received by the custodian in respect of the Government
Obligation evidenced by such depositary receipt.
"Guarantee" means the guarantee of the Securities by each Guarantor
under Article X hereof.
"Guarantors" means (i) Parent, (ii) the Subsidiaries of the Company
which have executed this Indenture as a Guarantor as of the date hereof, and
(iii) each of the Company's Subsidiaries, whether formed, created or acquired
after the Closing Date, which become a guarantor of Securities pursuant to the
provisions of this Indenture.
"Holder" or "Securityholder" means the Person in whose name a Security
is
-5-
12
registered in the Note Register.
"Indebtedness" of a Person means all obligations which would be treated
as liabilities upon a balance sheet of such Person prepared on a consolidated
basis in accordance with GAAP.
"Indenture" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms of the
Securities established as contemplated hereunder.
"Indirect Participant" means a person who holds an interest through a
Participant.
"Initial Securities" means the Company's 9.25% Senior Notes due 2010
issued on the Closing Date.
"Investment" by any Person means:
(1) all investments by such Person in any other Person in the form
of loans, advances or capital contributions;
(2) all guarantees of Indebtedness or other obligations of any
other Person by such Person;
(3) all purchases (or other acquisitions for consideration) by
such Person of Indebtedness, capital stock or other securities
of any other Person; and
(4) all other items that would be classified as investments
(including, without limitation, purchases outside the ordinary
course of business) on a balance sheet of such Person prepared
in accordance with GAAP.
"Legal Holiday" has the meaning ascribed to it in Section 11.8.
"Luxembourg Paying Agent" means Deutsche Bank Luxembourg S.A., located
at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and any successor paying
agent.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Note Register" means the register of Securities, maintained by the
Registrar, pursuant to Section 2.3.
"Obligations" means any principal, premiums, interest, penalties, fees,
-6-
13
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any indebtedness.
"Officer" means the Chairman of the Board, the President, the Chief
Financial Officer, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Assistant Secretary.
"Officers' Certificate," when used with respect to the Company, means a
certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Financial Officer, any Executive Vice President,
Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer
or the Controller of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. Such other counsel may be an employee of
or counsel to the Company.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or
redemption money or Government Obligations in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside
and segregated in trust (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provisions therefor satisfactory to the Trustee have been
made;
(3) Securities, except to the extent provided in Sections 8.4 and
8.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article VIII; and
(4) Securities which have been paid pursuant to Section 2.12 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities
have given any request,
-7-
14
demand, authorization, direction, notice, consent or waiver
hereunder, or whether sufficient funds are available for
redemption or for any other purpose and for the purpose of
making the calculations required by Section 313 of the Trust
Indenture Act, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the
Trustee shall be protected in making such calculation or in
relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Participant" means, with respect to Euroclear or Clearstream, a Person
who has an account with Euroclear or Clearstream, respectively.
"Paying Agent" has the meaning provided in Section 2.3, except that,
for the purposes of Article Eight, the Paying Agent shall not be the Company or
a Subsidiary of the Company or an Affiliate of any of them.
"Person" means any individual, corporation, partnership, business
trust, joint- stock company, trust, unincorporated organization, joint venture
or governmental authority or other entity of whatever nature.
"Place of Payment," when used with respect to the Securities, means the
place or places where the principal of, premium, if any, and interest, if any,
and any other payments on such Securities are payable as specified as
contemplated by Section 2.3.
"Principal Property" means the principal manufacturing facilities
located in the United States owned by the Company or a Subsidiary, except such
as the Board of Directors, in its good faith opinion, reasonably determines is
not significant to the business, financial condition and earnings of the Company
and its consolidated Subsidiaries taken as a whole, as evidenced by a Board
Resolution.
"Private Exchange Securities" shall have the meaning set forth in the
Registration Rights Agreement relating to the Initial Securities.
"QIB" means any "qualified institutional buyer" (as defined in Rule
144A under the Securities Act).
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
-8-
15
"Redemption Price," when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement, dated as of July 25, 2000, as amended from time to time, among
the Company, the Guarantors, Chase Manhattan International Limited, Bank of
America International Limited, ABN AMRO Incorporated, First Chicago Limited,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International and Scotia Capital (USA) Inc.
"Responsible Officer," when used with respect to the Trustee, shall
mean any officer within the corporate trust department of the Trustee, including
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer, or any other officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with a
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Securities Legend" means the Private Placement Legend set
forth in clause (A) of Section 2.1(c).
"Restricted Subsidiary" means any consolidated Subsidiary that owns any
Principal Property.
"Securities" means the collective reference to the Initial Securities,
Exchange Securities and Private Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means any Subsidiary which has:
(1) Consolidated Assets or in which the Company and its other
Subsidiaries have Investments, equal to or greater than 5% of
the total Consolidated Assets of the Company and its other
Subsidiaries at the end of its most recently completed fiscal
year; or
(2) consolidated gross revenue equal to or greater than 5% of the
consolidated gross revenue of the Company and its Subsidiaries
for its most recently completed fiscal year.
"Stated Maturity," when used with respect to any Security, means the
date specified in such Security as the fixed date on which the principal of such
Security is due and payable.
-9-
16
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939 as
in effect on the date of this Indenture, except as provided in Section 9.3.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Paying Agent" means United States Trust Company of New York and
any successor U.S. Paying Agent.
SECTION 1.2. Other Definitions.
-----------------
Term Defined in Section
"Additional Securities"......................................................2.2
"Bankruptcy Law".............................................................6.1
"Benefitted Party".......................................................10.1(c)
"Change of Control Offer"....................................................5.9
"Change of Control Payment Date".............................................5.9
"Custodian"..................................................................6.1
"Definitive Securities"...................................................2.1(a)
"Event of Default"...........................................................6.1
"Exchange Global Note"....................................................2.1(a)
"Global Securities".......................................................2.1(a)
"IAI Certificate..........................................................2.6(a)
"IAI Definitive Notes"....................................................2.1(a)
"IAIs"....................................................................2.1(a)
"Institutional Accredited Investor Note"..................................2.1(a)
"Institutional Accredited Investor Global Note"...........................2.1(a)
"Notice of Default".......................................................6.1(c)
"Private Placement Legend"................................................2.1(c)
"Quotation Agent"............................................................5.8
"Reference Dealer"...........................................................5.8
"Reference Dealer Rate"......................................................5.8
-10-
17
"Registrar"..................................................................2.3
"Regulation S"............................................................2.1(a)
"Regulation S Certificate"................................................2.6(a)
"Regulation S Definitive Notes"...........................................2.1(a)
"Regulation S Global Note"................................................2.1(a)
"Regulation S Legend".....................................................2.1(c)
"Regulation S Note".......................................................2.1(a)
"Regulation S Global Note"................................................2.1(a)
"Remaining Scheduled Payments"...............................................5.8
"Resale Restriction Termination Date".....................................2.1(c)
"Rule 144A"...............................................................2.1(a)
"Rule 144A Definitive Note"...............................................2.1(a)
"Rule 144A Certificate"...................................................2.6(a)
"Rule 144A Global Note"...................................................2.1(a)
"Rule 144A Note"..........................................................2.1(a)
"Sale and Lease-Back Transaction"............................................3.9
"Special Record Date".......................................................2.12
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by the Commission
rules have the meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
-11-
18
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular; and
(f) 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.
ARTICLE II
The Securities
SECTION 2.1. Form, Dating and Terms.
(a) The Initial Securities are being offered and sold by the Company
pursuant to a Purchase Agreement, dated July 19, 2000, among the Company, the
Guarantors, Chase Manhattan International Limited, Bank of America International
Limited, ABN AMRO Incorporated, First Chicago Limited, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ International and Scotia Capital (USA) Inc. (collectively, the "Initial
Purchasers") The Initial Securities will be resold by the Initial Purchasers
initially only to (A) QIBs in reliance on Rule 144A under the Securities Act
("Rule 144A") and (B) Non-U.S. Persons in reliance on Regulation S under the
Securities Act ("Regulation S"). Such Initial Securities may thereafter be
transferred to, among others, QIBs, Non-U.S. Persons and institutional
"accredited investors" (as defined in Rules 501(a)(1), (2), (3) and (7) under
the Securities Act who are not QIBs ("IAIs")) in accordance with Rule 501 of the
Securities Act in accordance with the procedure described herein.
Initial Securities offered and sold to QIBs in the United States in
reliance on Rule 144A (each, a "Rule 144A Note") will be issued on the Closing
Date in the form of a permanent global Security, without interest coupons,
substantially in the form of Exhibit A, which is hereby incorporated by
reference and made a part of this Indenture, including appropriate legends as
set forth in Section 2.1(c) (a "Rule 144A Global Note"), deposited with the
Book-Entry Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Rule 144A Global Note may be represented by
more than one certificate, if so required by the Depositary's rules regarding
the maximum principal amount to be represented by a single certificate. The
aggregate principal amount of the Rule 144A Global Note may from time to time be
increased or decreased by adjustments made on the records of the Book-Entry
Depositary as hereinafter provided.
Initial Securities offered and sold outside the United States in
reliance on Regulation S (each, a "Regulation S Note") will be issued on the
Closing Date in the form
-12-
19
of a permanent global Security, without interest coupons, substantially in the
form set forth in Exhibit A, which is hereby incorporated by reference and made
a part of this Indenture, including appropriate legends as set forth in Section
2.1(c) (a "Regulation S Global Note"), deposited with the Book-Entry Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Regulation S Global Note may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of the Regulation S Global Note may from time to time be
increased or decreased by adjustments made on the records of the Book-Entry
Depositary as hereinafter provided.
On the Closing Date a similar global Security to represent Initial
Securities that may be resold to IAIs in the United States (each, an
"Institutional Accredited Investor Note"), will be issued in the form of a
single permanent global Security, without interest coupons, substantially in the
form set forth in Exhibit A, which is hereby incorporated by reference and made
a part of this Indenture, including appropriate legends as set forth in Section
2.1(c) ("Institutional Accredited Investor Global Note"), deposited with the
Book- Entry Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate amount of the Institutional
Accredited Investor Global Note may from time to time be increased or decreased
by adjustments made on the records of the Book-Entry Depositary as hereinafter
provided.
Exchange Securities exchanged for interests in the Rule 144A Note, the
Regulation S Note and the Institutional Accredited Investor Note, if any, will
be issued in the form of a permanent global Security substantially in the form
of Exhibit B, which is hereby incorporated by reference and made a part of this
Indenture, deposited with the Book-Entry Depositary as hereinafter provided,
including the appropriate legend set forth in Section 2.1(c) (each, an "Exchange
Global Note"). The Exchange Global Note may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate amount
of the Exchange Global Note may from time to time be increased or decreased by
adjustments made on the records of the Book-Entry Depositary as hereinafter
provided.
Each Rule 144A Global Note, each Regulation S Global Note, each
Institutional Accredited Investor Global Note and each Exchange Global Note are
sometimes collectively herein referred to as the "Global Securities."
Securities issued pursuant to Section 2.1(d)(ii) in exchange for or
upon transfer of beneficial interests in a Global Note may be in the form of
permanent certificated Securities, without interest coupons, in substantially
the form set forth in Exhibit A or Exhibit B, as appropriate, including
appropriate legends set forth in Section 2.1(c) (the "Definitive Securities").
Definitive Securities issued in exchange for beneficial interests in the Rule
144A Global Note as hereinafter referred to as "Rule 144A Definitive Notes."
Definitive Securities issued in exchange for beneficial interests in the
Regulation S Global Note are hereinafter referred to as "Regulation S Definitive
Notes." Definitive Securities issued in exchange for beneficial interests in the
Institutional Accredited Investor Global
-13-
20
Note are hereinafter referred to as "IAI Definitive Notes."
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" of Euroclear and "The
General Terms and Conditions of Clearstream" and "Customer Handbook" of
Clearstream shall be applicable to interests in the Global Notes that are held
by Agent Members through Euroclear and Clearstream.
The Private Exchange Securities shall be in the form of Exhibit A. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage, in addition to those set forth on Exhibits A and B and
in Section 2.1(c). The Company and the Trustee shall approve the forms of the
Securities and any notation, endorsement or legend on them. Each Security shall
be dated the date of its authentication. The terms of the Securities set forth
in Exhibit A and Exhibit B are part of the terms of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to be bound by such terms.
(b) Denominations. The Securities shall be issuable only in fully
registered form, without interest coupons, and in denominations of (U)1,000 and
any integral multiple thereof, provided, that each Institutional Accredited
Investor Note shall be in a minimum denomination of (U)250,000.
(c) Restrictive Legends. Unless and until (i) an Initial Security or
Private Exchange Security is sold under an effective registration statement or
(ii) an Initial Security is exchanged for an Exchange Security in the Exchange
Offer pursuant to an effective registration statement, in each case pursuant to
the Registration Rights Agreement or a similar agreement or (iii) a period of
two years has elapsed after the later of the original issue date of the Initial
Security and the last date on which the Company or any affiliate of the Company
was the owner of the Initial Security (the "Resale Restriction Termination
Date"),
(A) the Global Securities and the Definitive
Securities shall bear the following legend (the "Private Placement Legend") on
the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
-14-
21
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR OF ANY PREDECESSOR OF THIS SECURITY), ONLY (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF (U)250,000 OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE COMPANY
AND THE TRUSTEE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E)
OR (F) AND IN THE CASE OF THE FOREGOING CLAUSE (E), A CERTIFICATE OF
TRANSFER (A FORM OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE
TRUSTEE) COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE TRANSACTION TERMINATION DATE."; and
(B) The Global Securities, whether or not an
Initial Security,
-15-
22
shall bear the following legend on the face thereof:
THIS SECURITY IS HELD BY THE BOOK-ENTRY DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (2)
THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.1(d) OF THE INDENTURE, (3) THIS GLOBAL SECURITY MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF
THE INDENTURE AND (4) THIS GLOBAL SECURITY MAY BE DELIVERED TO A
SUCCESSOR BOOK-ENTRY DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
(d) Book-Entry Provisions for Global Notes.
(i) Each Global Note initially shall (i) be deposited
with the Book-Entry Depositary and (ii) bear such legends as required
by Section 2.1(c).
Upon receipt of each Global Note authenticated and
delivered by the Trustee, the Book-Entry Depositary shall issue to the
Depositary a Depositary Interest in such Global Note by recording the
Depositary Interest in the register of the Book-Entry Depositary in the
name of the Depositary or its nominee. Ownership of beneficial
interests in Global Notes shall be limited to Participants and Indirect
Participants. Upon the issuance of the Depositary Interest in such
Global Note to the Depositary, Euroclear and Clearstream will credit,
on their internal book-entry registration and transfer systems,
Participant's accounts with the respective interests owned by such
Participants.
Neither the Depositary nor its Participants shall
have any rights under this Indenture with respect to any Global Note,
and so long as the Book- Entry Depositary is the sole Holder of such
Global Note, the Book-Entry Depositary will be treated by the Company,
each Guarantor, the Trustee and any agent of any of them as the
absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, each Guarantor, the Trustee or any agent of any of them from
(A) giving effect to any written certification, proxy or other
authorization furnished by the Book-Entry Depositary or (B) impairing,
as between the Book-Entry Depositary and the Depositary and its
Participants, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Note. The Holder of
a Global Note may grant proxies and otherwise authorize any person,
including participants and persons that may hold interests through
-16-
23
Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
(ii) Interests of beneficial owners in a Global Note
may be transferred in accordance with the applicable rules and
procedures of Euroclear and Clearstream and the provisions of Section
2.6, if applicable. Transfers of a Global Note shall be by delivery.
The Company and the Book-Entry Depositary have agreed that the Global
Notes shall only be delivered in circumstances described in the Deposit
Agreement. Definitive Securities shall be transferred to all beneficial
owners in exchange for their beneficial interests in the Rule 144A
Global Note, the Institutional Accredited Investor Global Note or the
Regulation S Global Note, respectively, (A) if either Euroclear or
Clearstream notifies the Book-Entry Depositary and the Company that it
is unwilling or unable to continue to act as a clearing agency and a
successor clearing agency is not appointed by the Book-Entry Depositary
at the request of the Company within 120 days, (B) if the Depositary,
Euroclear or Clearstream so requests following an Event of Default, (C)
if, in the case of (A) or (B), the owner of a Book-Entry Interest
requests such exchange in writing delivered through either Euroclear or
Clearstream (including following an Event of Default), or (D) if the
Book-Entry Depositary or the Depositary is at any time unwilling or
unable to continue as Book-Entry Depositary or Depositary, as
applicable, and a successor Book-Entry Depositary is not appointed by
the Company within 120 days. In connection with a transfer of an entire
Global Note to beneficial owners pursuant to this paragraph (ii), the
applicable Global Note shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Euroclear and/or Clearstream, as applicable in exchange for its
beneficial interest in the applicable Global Note, an equal aggregate
principal amount of Definitive Securities, as the case may be, of
authorized denominations.
(iii) Any beneficial interest in one of the Global
Notes that is transferred to a person who takes delivery in the form of
an interest in another Global Note will, upon transfer, cease to be an
interest in such Global Note and become an interest in the other Global
Note and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Note for as long as it remains such an
interest.
(iv) Any Definitive Securities delivered in exchange
for an interest in a Global Note pursuant to paragraph (ii) of this
Section shall, except as otherwise provided in Section 2.6, bear the
Private Placement Legend, unless such exchange is made on or after (A)
an Initial Security is sold pursuant to an effective registration
statement, pursuant to the Registration Rights Agreement,
-18-
24
(B) an Initial Security is exchanged for an Exchange Security in the
Exchange Offer under an effective registration statement, pursuant to
the Registration Rights Agreement, or (C) the Resale Restriction
Termination Date.
(e) Definitive Securities. Except as provided in Section 2.1(d) above,
owners of beneficial interests in Global Securities will not be entitled to
receive Definitive Securities.
SECTION 2.2. Execution and Authentication. One Officer shall sign the
Securities for the Company by manual or facsimile signature. If an Officer whose
signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless, after
giving effect to any exchange of Initial Securities for Exchange Securities.
A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. The signature of the Trustee on a
Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Trustee shall authenticate and make available for delivery:
(1) the Initial Securities for issue on the Closing Date in an aggregate
principal amount of Euro150,000,000, and (2) Exchange Securities for issue only
in an Exchange Offer or Private Exchange Securities, in each case pursuant to
the Registration Rights Agreement, and only in exchange for the applicable
Initial Securities of the same series of an equal principal amount, in each case
upon a Company Order. Such Company Order shall specify the amount of the
Securities to be authenticated and the date on which the original issue of
Securities are to be authenticated and whether the Securities are to be Initial
Securities, Exchange Securities or Private Exchange Securities. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is limited to Euro200,000,000 outstanding, except for Securities
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 2.6, Section 2.10,
Section 2.11, Section 5.7 and except for transactions similar to the Exchange
Offer. The Company may issue additional Securities from time to time after the
date of this Indenture (the "Additional Securities"), which shall be subject to
all of the terms of this Indenture. The Securities and any Additional Securities
subsequently issued under the Indenture will be treated as a single class for
all purposes under this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase.
In case the Company, pursuant to Article IV, shall be consolidated or
merged with or into any other Person or shall transfer or lease all or
substantially all of its assets to any Person, and the successor Person formed
by or surviving any such consolidation or any
-19-
25
such merger, or to which such transfer or lease shall have been made, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
IV, any of the Securities authenticated or delivered prior to such
consolidation, merger, conveyance, transfer or lease may, from time to time, at
the request of the successor Person, be exchanged for other Securities executed
in the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Order of the successor Person, shall authenticate and deliver
Securities as specified in such order for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 2.2 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange (the "Note
Register"). The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.9. The
Company or any wholly owned Subsidiary may act as Paying Agent, Registrar,
co-registrar or transfer agent.
For so long as the Securities are listed on the Luxembourg Stock
Exchange, the Company will maintain a Paying Agent in Luxembourg.
The Company initially appoints the Trustee as the U.S. Paying Agent,
Deutsche Bank AG London as Fiscal and Principal Paying Agent and Deutsche Bank
Luxembourg S.A. as Luxembourg Paying Agent and Registrar in connection with the
Securities.
SECTION 2.4. Paying Agent To Hold Money in Trust. Prior to each due
date of the principal of or interest on any Security, the Company shall deposit
with the relevant Paying Agent a sum sufficient to pay such principal or
interest when due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that such
-20-
26
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money held by such Paying Agent for the payment of principal of or
interest on the Securities and shall notify the Trustee in writing of any
default by the Company or any Guarantor in making any such payment. If the
Company acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent (other than the Trustee) to pay all money held by it to the
Trustee and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section, the Paying Agent (if other than the Company) shall
have no further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities .
SECTION 2.5. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, or to the extent otherwise required under the TIA, the Company shall
furnish to the Trustee, in writing at least seven Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders.
SECTION 2.6. Transfer and Exchange.
(a) Unless and until (i) an Initial Security is sold pursuant to an
effective registration statement, or (ii) an Initial Security is exchanged for
an Exchange Security in the Exchange Offer pursuant to an effective registration
statement, in each case, pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(i) General. The provisions of this Section 2.6 shall
apply to all transfers involving any Definitive Securities and, if
applicable, any beneficial interest in any Global Note.
(ii) Certain Definitions. As used in this Section 2.6
only, "delivery" of a certificate by a transferee or transferor means
the delivery to the Registrar by such transferee or transferor of the
applicable certificate duly completed; a "transfer" of a Global Note
means the transfer of that portion of the principal amount of the
transferor's beneficial interest therein that the transferor has
notified the Book-Entry Depositary that it has agreed to transfer; and
a "transfer" of a Definitive Security means the transfer of that
portion of the principal amount thereof that the transferor has
notified the Registrar that it has agreed to transfer.
As used in this Indenture, "Regulation S Certificate"
means a certificate substantially in the form set forth in Section 2.8;
"Rule 144A
-21-
27
Certificate" means a certificate substantially in the form set forth in
Section 2.9; "IAI Certificate" means a certificate substantially in the
form set forth in Section 2.7.
(iii) Deemed Delivery of a Rule 144A Certificate in
Certain Circumstances. A Rule 144A Certificate, if not actually
delivered, will be deemed delivered if (1)(A) the transferor advises
the Company and the Trustee in writing that the relevant offer and sale
were made in accordance with the provisions of Rule 144A (or, in the
case of a transfer of a Definitive Security, the transferor checks the
box provided on the Definitive Security to that effect) and (B) the
transferee advises the Company and the Trustee in writing that (x) it
and, if applicable, each account for which it is acting in connection
with the relevant transfer, is a QIB within the meaning of Rule 144A,
(y) it is aware that the transfer of Securities to it is being made in
reliance on the exemption from the provisions of Section 5 of the
Securities Act provided by Rule 144A, and (z) prior to the proposed
date of transfer it has been given the opportunity to obtain from the
Company the information referred to in Rule 144A(d)(4), and has either
declined such opportunity or has received such information (or, in the
case of a transfer of a Definitive Security, the transferee signs the
certification provided on the Definitive Security to that effect); or
(2) the transferor holds the Rule 144A Global Note and is transferring
to a transferee that will take delivery in the form of the Rule 144A
Global Note.
(iv) Procedures and Requirements. The following
procedures are applicable to any proposed transfer of a Security that
is subject to this Section 2.6:
(A) a transfer of a Rule 144A Note, a Regulation
S Note or an Institutional Accredited Investor Note or a
beneficial interest therein to a QIB shall be made upon the
delivery of a Rule 144A Certificate from the proposed
transferee representing that it is purchasing the Security
for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the
meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from
registration provided by Rule 144A;
(B) a transfer of a Rule 144A Note, a Regulation
S Note or an Institutional Accredited Investor Note or a
beneficial interest therein
-22-
28
to an IAI shall be made upon delivery of a IAI Certificate
from the proposed transferor and, if requested by the Company
or the Trustee, the delivery of an Opinion of Counsel,
certification and/or other information satisfactory to each
of them; and
(C) a transfer of a Rule 144A Note, a Regulation
S Note or an Institutional Accredited Investor Note or a
beneficial interest therein to a Non-U.S. Person shall be
made upon delivery of a Regulation S Certificate from the
proposed transferor substantially in the form set forth in
Section 2.8, and if requested by the Company or the Trustee,
the delivery of an Opinion of Counsel, certification and/or
other information satisfactory to each of them.
(b) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless there is delivered to the Registrar
an Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(c) The Company shall deliver to the Trustee an Officers' Certificate
setting forth the Resale Restriction Termination Date. The Registrar shall
retain copies of all letters, notices and other written communications received
pursuant to Section 2.1 or this Section 2.6. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
(d) Obligations with Respect to Transfers and Exchanges of Securities
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this
Article II, execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax, assessments, or
similar governmental charge payable in connection therewith (other than
any such transfer taxes, assessments or similar governmental charges
payable upon exchange or transfer pursuant to Sections 2.10 or 5.7.
-23-
29
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Definitive Security (A) for
a period of 15 calendar days prior to any Redemption Date; (B) for a
period of 15 calendar days immediately prior to the date fixed for
selection of Securities to be redeemed in part; (C) for a period of 15
calendar days prior to the record date with respect to any interest
payment date; or (D) which the Holder has tendered (and not withdrawn)
for repurchase in connection with a Change of Control Offer.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(v) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(d) shall, except
as otherwise provided by Section 2.6(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security
set forth in Section 2.1(c).
(vi) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(e) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, Participant, Indirect
Participant, the Depositary or other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
Participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any Participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption) or the payment of any
amount or delivery of any Securities (or other security or property)
under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made
to Holders in respect of the Securities shall be given or made only to
or upon the order of the registered Holders of the Securities (which
shall be the Depositary or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global Security shall
be exercised only through the Depositary subject to the applicable
rules and procedures of the Depositary.
-24-
30
The Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Participants, Indirect Participants or beneficial
owners in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 2.7. Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors.
IAI Certificate
[Date]
▇. ▇. Tower Corporation
c/o United States Trust Company of
New York, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: ▇.▇. Tower Corporation (the "Company")
9.25% Senior Notes due 2010 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed purchase of Euro_________ aggregate
principal amount of Securities of the Company, we confirm that:
l. We are an institutional "accredited investor" (as defined in Rule
50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")), purchasing for our own account or for the
account of such an institutional "accredited investor" in each case in a minimum
principal amount of Securities of Euro250,000 and we are acquiring the
Securities for investment purposes and not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act or other
applicable securities laws and we have such knowledge and
-25-
31
experience in financial and business matters as to be capable of evaluating the
merits and risk of our investment in the Securities, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.
2. We understand and acknowledge that the Securities have not been
registered under the Securities Act, or any other applicable securities law and
may not be offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act or any other applicable
securities law, or pursuant to an exemption therefrom, and in each case in
compliance with the conditions for transfer set forth below. We agree on our own
behalf and on behalf of any investor account for which we are purchasing
Securities to offer, sell or otherwise transfer such Securities prior to the
date which is two years after the later of the date of original issue and the
last date on which the Company or any affiliate of the Company was the owner of
such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a registration
statement which has been declared effective under the Securities Act, (c) for so
long as the Securities are eligible for resale pursuant to Rule 144A under the
Securities Act, to a person we reasonably believe is a "Qualified Institutional
Buyer" within the meaning of Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A (d) pursuant to offers and sales
to non- U.S. persons that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional "accredited
investor" within the meaning of subparagraphs (a)(1), (a)(2), (a)(3) or (a)(7)
of Rule 501 under the Securities Act that is acquiring the Securities for its
own account or for the account of such institutional "accredited investor," for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act, and in each case, in
a minimum principal amount of Securities of Euro250,000 or (f) pursuant to any
other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver to the trustee (the "Trustee") under this Indenture pursuant to which
the Securities are issued and to the Company a letter from the transferee
substantially in the form of this letter, which shall provide, among other
things, that the transferee is a person or entity defined in paragraph 1 of this
letter and that it is acquiring such notes for investment purposes and not for
distribution in violation of the Securities Act. We acknowledges that the
Company and the Trustee reserve the right prior to any offer, sale or other
transfer of the Securities pursuant to clauses (d), (e) and (f) above prior to
the Resale Restriction Termination Date to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to the Company and
the Trustee.
-26-
32
3. We are acquiring the Securities purchased by us for our own account
or for one or more accounts as to each of which we exercise sole investment
discretion.
4. You are entitled to rely upon this letter, and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: (Name of Purchaser)
Date:
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name Address Taxpayer ID Number
SECTION 2.8. Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S.
Regulation S Certificate
[Date]
▇. ▇. Tower Corporation
c/o United States Trust Company
of New York, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: ▇. ▇. Tower Corporation (the "Company")
9.25% Senior Notes due 2010 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of Euro_________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
-27-
33
(a) the offer of the Securities was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or (ii)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(c) neither we, any of our affiliates, nor any person acting on our or
their behalf has made any directed selling efforts in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(l) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(l), as the case may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
------------------------------------
Authorized Signature
SECTION 2.9. Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Rule 144A.
Rule 144A Certificate
To: United States Trust Company
of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-28-
34
New York, New York 10036-1537
Attention: Corporate Trust Administration
Re: ▇.▇. Tower Corporation (the "Company")
9.25% Senior Notes due 2010 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of Euro_____________ aggregate
principal amount of Securities, we confirm that such sale has been effected
pursuant to and in accordance with Rule 144A ("Rule 144A") under the Securities
Act of 1933, as amended (the "Securities Act"). We are aware that the transfer
of Securities to us is being made in reliance on the exemption from the
provisions of Section 5 of the Securities Act provided by Rule 144A. Prior to
the date of this Certificate we have been given the opportunity to obtain from
the Company the information referred to in Rule 144A(d)(4), and have either
declined such opportunity or have received such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF BUYER]
By:
Name:
SECTION 2.10. Mutilated, Destroyed, Lost or Stolen Securities. If a
mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that such Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code are
met and the Holder satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent, the Registrar and any co-
registrar from any loss which any of them may suffer if a Security is replaced,
and, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
-29-
35
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, any Guarantor (if applicable)
and any other obligor upon the Securities, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.11. Temporary Securities. Until Definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
Definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities. After
the preparation of Definitive Securities, the temporary Securities shall be
exchangeable for such Definitive Securities upon surrender of such temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and make available for delivery in exchange
therefor, one or more Definitive Securities representing an equal principal
amount of Securities. Until so exchanged, the Holder of temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as a
holder of Definitive Securities.
SECTION 2.12. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
return to the Company all Securities surrendered for registration of transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace Securities it has paid or delivered
-30-
36
to the Trustee for cancellation for any reason other than in connection with a
transfer or exchange.
SECTION 2.13. Payment of Interest; Defaulted Interest. The principal of
(and premium, if any) and interest on the Securities shall be payable at the
office or agency of the Company maintained for such purpose in the Borough of
Manhattan in the City of New York, or at such other office or agency of the
Company as may be maintained for such purpose pursuant to Section 2.3; provided,
however, that, at the option of the Company, each installment of interest may be
paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register and; provided, further, that all
payments with respect to the Securities, the Holders of which have given wire
transfer instructions to the Company and the Paying Agent prior to the
applicable record date for such payment, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof. Payments in respect of Securities represented by a Global Security
(including principal, premium and interest) will be made by wire transfer of
immediately available funds to the accounts specified by the Depositary. The
Company will pay principal, premium, if any, and interest in Euros.
Interest on any Security which 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 Security (or one or more predecessor Securities) is registered
at the close of business on the regular record date for such interest at the
office or agency of the Company maintained for such purpose pursuant to Section
2.3.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for when the same becomes due and payable, shall forthwith
cease to be payable to the Holder on the relevant regular record date by virtue
of having been such a Holder, and such defaulted interest and (to the extent
lawful) interest on such defaulted interest at the rate borne by the Securities
(such defaulted interest and interest thereon herein collectively called
"Defaulted Interest") shall be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on a Special Record Date (as
defined below) for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements 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 (a) provided. Thereupon the Trustee shall
fix a record date (the "Special Record Date") for the payment of such Defaulted
-31-
37
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given in the
manner provided for in Section 11.2, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so given, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of such Defaulted Interest to the
Persons in whose names such Securities are registered at the close of business
on a specified date in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of, transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14. Computation of Interest. Interest on the Securities shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.15. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP," "ISIN" or "Common Code" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP," "ISIN" or "Common Code" numbers in notices of
redemption as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
-32-
38
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal, Premium, if any, and Interest, if
any. The Company covenants and agrees for the benefit of the Holders of
Outstanding Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, if any, on the Securities in accordance with the
terms of the Securities and this Indenture. An installment of principal,
premium, if any, or interest, if any, shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.
SECTION 3.2. Maintenance of Office or Agency. The Company will maintain
in each Place of Payment for the Securities an office or agency where the
Securities may be presented or surrendered for payment, where the Securities may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Corporate Trust Office of the Trustee shall be such an office
or agency of the Company, unless the Company may designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for the Securities for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
any change in the location of any such other office or agency.
SECTION 3.3. Money for Securities Payments to be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to the Securities, it will, on or before each due date of the
principal of, premium, if any, or interest, if any, on the Securities, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
-33-
39
herein provided and will promptly notify the Trustee in writing of its action or
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest, if any, on the Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company or any
Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal, premium, if any, or interest, if any, on the Securities;
and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge or defeasance of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same terms as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal, premium or interest
on any Security and remaining unclaimed for two years after such principal,
premium, if any, or interest, if any, has become due and payable shall be paid
to the Company on Company Request or (if then held by the Company) shall be
discharged from such trust, unless otherwise required by certain provisions of
applicable law; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein,
-34-
40
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 3.4. Corporate Existence. Subject to Article IV, the Company
will at all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; provided, that nothing in this Section 3.4 shall prevent the
abandonment or termination of any right or franchise of the Company if, in the
opinion of the Company, such abandonment or termination is in the best interests
of the Company and does not materially adversely affect the ability of the
Company to fulfill its obligations hereunder.
SECTION 3.5. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the Company 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 Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company 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 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;
(b) to 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
Company with the conditions and covenants provided for in this Indenture, as may
be required from time to time by such rules and regulations;
(c) to transmit to all Holders of Securities, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 3.5, as may be required by rules and
regulations prescribed from time to time by the Commission; and
(d) to comply with Sections 313(b) and 313(d) of the Trust Indenture
Act, to the extent applicable.
-35-
41
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 information
concerning the Company's compliance with any of its covenants hereunder,
provided that the foregoing shall not relieve the Trustee of any of its
responsibilities hereunder. Reports and other filings made by Parent shall be
deemed to satisfy the obligations of the Company hereunder as long as such
reports and other filings include the information required by the staff of the
Commission under its existing interpretations of Staff Accounting Bulletin 53.
SECTION 3.6. Annual Review Certificate; Notice of Defaults or Events
of Default.
(a) The Company covenants and agrees to deliver to the Trustee, within
120 days after the end of each fiscal year of the Company (beginning with the
fiscal year next following the Closing Date), a certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 3.6, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(b) The Company covenants and agrees to deliver to the Trustee, within
a reasonable time after the Company becomes aware of the occurrence of a Default
or an Event of Default of the character specified in Section 6.1(d) hereof,
written notice of the occurrence of such Default or Event of Default.
SECTION 3.7. Books of Record and Account. The Company will keep proper
books of record and account, either on a consolidated or individual basis. The
Company shall cause its books of record and account to be examined either on a
consolidated or individual basis, by one or more firms of independent public
accountants not less frequently than annually. The Company shall prepare its
financial statements in accordance with generally accepted accounting
principles.
SECTION 3.8. Limitation on Liens. So long as the Securities shall be
Outstanding, the Company will not create or assume, and will not permit any
Restricted Subsidiary to create or assume, any mortgage, encumbrance, lien,
pledge or security interest of any kind (any such mortgage, encumbrance, lien,
pledge or security interest of any kind being referred to herein as a "Lien" or
"Liens") upon or in any Principal Property owned by the Company or by any
Restricted Subsidiary or on shares of capital stock or evidence of Indebtedness
of any Restricted Subsidiary, whether that interest, capital stock or
Indebtedness is owned at the date of this Indenture or thereafter acquired, if
that Lien secures or is intended to secure, directly or indirectly, the payment
of any indebtedness for borrowed money evidenced by notes, bonds, debentures or
other similar
-36-
42
evidences of Indebtedness without making effective provision, and the Company in
that case will make or cause to be made effective provision, whereby all
Securities (together with, if the Company shall so determine, any other
Indebtedness of the Company or such Restricted Subsidiary, whether then existing
or thereafter created which is not subordinated to the Securities) shall be
secured by such a Lien equally and ratably with (or prior to) any and all other
Indebtedness thereby secured, so long as such Indebtedness shall be so secured;
provided, however, that the foregoing shall not apply to any of the following:
(a) Liens on any Principal Property, shares of stock of Indebtedness of
any corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(b) Liens on any Principal Property, shares of stock or Indebtedness
acquired, constructed or improved by the Company or any Restricted Subsidiary
after the date of this Indenture which are created or assumed prior to or at the
time of such acquisition, construction or improvement or within 365 days after
the acquisition, completion of construction or improvement or commencement of
commercial operation of such property, to secure or provide for the payment of
all or any part of the purchase price or the cost of such construction or
improvement thereof;
(c) Liens on any Principal Property, shares of stock or Indebtedness
existing at the time of acquisition thereof (including acquisition through
merger or consolidation);
(d) Liens on any Principal Property, shares of stock or Indebtedness
acquired from a corporation that is merged with or into the Company or a
Restricted Subsidiary;
(e) Liens on any Principal Property, shares of stock or Indebtedness to
secure Indebtedness to the Company or to a Restricted Subsidiary;
(f) Liens on any Principal Property, shares of stock or Indebtedness in
favor of any country or any political subdivision of any country, or any
department, agency or instrumentality of any country or political subdivision of
any country, to secure partial, progress, advance or other payments, or to
secure any Indebtedness incurred for the purpose of financing all or any part of
the cost of acquiring, constructing or improving any Principal Property, shares
of stock or Indebtedness subject to such Liens, including Liens incurred in
connection with pollution control or industrial revenue bonds or similar types
of financings;
(g) Liens existing as of the date of this Indenture;
(h) Liens securing Indebtedness in respect of interest rate agreement
obligations or currency agreement obligations entered into to protect against
fluctuations in interest rates or exchange rates and not for speculative
reasons; or
-37-
43
(i) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in the
foregoing clauses (a) to (h), inclusive; provided, however, that the principal
amount of Indebtedness secured by the Lien shall not exceed the principal amount
secured at the time of such extension, renewal or replacement and that such
extension, renewal or replacement Lien shall be limited to the Principal
Property, shares of stock or Indebtedness which secured such Lien (plus
improvements on such property).
Notwithstanding the foregoing, the Company or any Restricted Subsidiary
may, without equally and ratably securing the Securities, create or assume Liens
which would otherwise be subject to the foregoing restrictions if, at the time
of such creation, assumption, renewal or replacement, and after giving effect
thereto, the aggregate amount of all Exempted Indebtedness does not exceed 15%
of Consolidated Assets determined as of a date not more than 90 days prior
thereto.
SECTION 3.9. Limitation on Sale and Lease-Back Transactions. So long as
the Securities shall be Outstanding, the Company will not, nor will it permit
any Restricted Subsidiary to, enter into any lease with any Person (other than
the Company or any Restricted Subsidiary) covering any Principal Property owned
by the Company or such Restricted Subsidiary as of the date hereof that is
subsequently sold by the Company or such Restricted Subsidiary to such Person in
connection with such lease (a "Sale and Lease-Back Transaction") unless the
Company or such Restricted Subsidiary: (a) would be entitled under Section 3.8
to incur Indebtedness secured by a Lien on the Principal Property to be leased
in an amount equal to the Attributable Debt with respect to such Sale and
Lease-Back Transaction without equally and ratably securing the Securities; or
(b) uses (within 365 days of the effective date of such transaction) an amount
equal to the proceeds from the sale of such Principal Property to repay any
Funded Indebtedness; provided, however, that the foregoing shall not prohibit
the Company or any Restricted Subsidiary from entering into any Sale and
Lease-Back Transaction: (i) involving a lease with a term of three years or
less; or (ii) that is entered into within 365 days after the later of the
acquisition, the completion of construction, or the commencement of operation of
such Principal Property.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary
may enter into Sale and Lease-Back Transactions in addition to any permitted by
the immediately preceding paragraph if, at the time of entering into such Sale
and Lease-Back Transaction and after giving effect thereto, the aggregate amount
of all Exempt Indebtedness does not exceed 15% of Consolidated Assets determined
as of a date not more than 90 days prior thereto.
-38-
44
ARTICLE IV
Consolidation, Merger or Sale by the Company
SECTION 4.1. Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate with or merge into any corporation, or transfer or
lease all or substantially all of its assets unless:
(a) the corporation formed by such consolidation or into which the
Company is merged (if other than the Company), or to which such transfer or
lease shall have been made, is a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia;
(b) the corporation formed by such consolidation or into which the
Company is merged (if other than the Company), or to which such transfer or
lease shall have been made, expressly assumes by supplemental indenture all the
obligations of the Company under the Securities and this Indenture;
(c) immediately after giving effect to the transaction, no Default or
Event of Default exists; and
(d) if, as a result of any such consolidation or merger or such
transfer or lease, properties or assets of the Company would become subject to
an encumbrance which would not be permitted by the terms of the Securities, the
Company or such successor corporation, as the case may be, shall take such steps
as shall be necessary to secure such Securities equally and ratably with all
indebtedness secured thereby.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
In the event of the assumption by a successor corporation as provided
in clause (b) above, such successor corporation shall succeed to and be
substituted for the Company hereunder and under the Securities with the same
effect as if it had been named hereunder and thereunder and all such obligations
of the Company shall terminate.
-39-
45
ARTICLE V
Redemption of Securities
SECTION 5.1. Applicability of Article. The Securities shall be
redeemable in accordance with their terms and in accordance with this Article.
SECTION 5.2. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In the case of any redemption at the election of the Company of less
than all the Securities , the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
Redemption Price, of the principal amount of Securities to be redeemed.
SECTION 5.3. Selection of Securities to be Redeemed. If less than all
the Securities are to be redeemed, the particular Securities to be redeemed will
be selected not more than 60 days prior to the redemption date by the Trustee in
compliance with any applicable rules of the principal U.S. securities exchange,
if any, on which the Securities are listed or, if the Securities are not listed
on the Luxembourg Stock Exchange or a U.S. securities exchange or if there are
no applicable rules, on a pro rata basis, by lot or by such other method as such
Trustee will deem fair and appropriate; provided that the unredeemed portion of
the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. The Trustee shall make the selection from the Securities that are
Outstanding that have not previously been called for redemption and may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for the Securities, or any integral multiple of Euro1,000 in excess
thereof) of the principal amount of the Securities of a denomination larger than
the minimum authorized denomination for Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate of the Company or any Subsidiary of the Company thereof shall not be
included in the Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
-40-
46
SECTION 5.4. Notice of Redemption. At least 30 but no more than 60 days
before any redemption date the Company will deliver written notice of such
redemption to the Trustee and, (i) so long as the Securities are listed on the
Luxembourg Stock Exchange and the rules of such exchange so require, (a) publish
a notice in a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort) and (b) deliver written notice of such
redemption to the Luxembourg Stock Exchange, and (ii) mail a notice of
redemption first-class postage prepaid to each holder of Securities to be
redeemed at its registered address.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all of the Outstanding Securities are to be redeemed,
the identification (and in the case of partial redemption, the principal
amounts) of the particular Security or Securities to be redeemed;
(d) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without charge,
a new Security or Securities of authorized denominations for the principal
amount thereof remaining unredeemed;
(e) the Place of Payment where such Securities are to be surrendered
for payment for the Redemption Price;
(f) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(g) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security, or the portion thereof, to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after said
date; and
(h) the CUSIP, ISIN or Common Code number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 5.5. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in
-41-
47
Section 3.3) an amount of money sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an interest
payment date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
SECTION 5.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities 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 Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security,
for redemption in accordance with said notice, such Security shall be paid by
the Company 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 Securities, or one or more predecessor Securities, registered as such at
the close of business on the relevant record dates according to their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 5.7. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part at the office or agency of the Company maintained for
such purpose pursuant to Section 3.2 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of that Security, without
service charge, a new Security or Securities, having the same form, terms and
Stated Maturity, in any authorized denomination equal in aggregate principal
amount to the unredeemed portion of the principal amount of the Security
surrendered.
SECTION 5.8. Optional Redemption. The Company may at its option redeem
all or part of the Securities. Any redemption pursuant to this Section 5.8 shall
be made pursuant to the provisions of Section 5.1 through 5.7 hereof. The
Redemption Price will equal the greater of:
(1) 100% of the principal amount of the Securities to be redeemed;
or
(2) as determined by a Quotation Agent, the sum of the present
values of the Remaining Scheduled Payments of the Securities
discounted to the Redemption Date, on a semiannual basis
(assuming a 360-day year consisting of twelve 30 day months),
at the Reference Dealer Rate plus 50 basis points
-42-
48
plus, in each case, accrued interest thereon to the Redemption Date.
"Quotation Agent" means a Reference Dealer.
"Reference Dealer" means Chase Manhattan International Limited or Bank
of America International Limited or their respective successors.
"Reference Dealer Rate" means with respect to a Reference Dealer and
any redemption date, the midmarket annual yield to maturity, as determined by a
Reference Dealer, of the German Government Bund 5.25% due July 1, 2010 or, if
that security is no longer outstanding, a similar security in the reasonable
judgment of such Reference Dealer, at 11:00 a.m. (London time) on the third
business day in London preceding such redemption date quoted in writing to the
Trustee by such Reference Dealer.
"Remaining Scheduled Payments" means, with respect to each Security to
be redeemed, the remaining scheduled payments of the principal thereof and
interest thereon that would be due after the related Redemption Date if such
Security were not redeemed. However, if such Redemption Date is not an interest
payment date with respect to such Security, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such Redemption Date.
SECTION 5.9. Offer to Repurchase Upon a Change of Control. If a Change
of Control occurs, each Holder shall have the right to require the Company to
repurchase all or any part (equal to Euro1,000 or an integral multiple of
Euro1,000) of that Holder's Securities pursuant to the Change of Control offer
on the terms set forth in this Indenture (a "Change of Control Offer"). In the
Change of Control Offer, the Company shall offer a Change of Control Payment in
cash equal to 101% of the aggregate principal amount of Securities repurchased
plus accrued and unpaid interest and liquidated damages, if any, on the Notes
repurchased to the date of purchase. Within 30 days following any Change of
Control, the Company shall mail a notice to each Holder stating: (1) the
transaction or transactions that constitute the Change of Control; (2) that the
Change of Control Offer is being made pursuant to this Section 5.9 and that all
Securities tendered shall be accepted for payment; (3) the purchase price and
the purchase date, which date shall be no earlier than 30 days and no later than
60 days from the date the notice is mailed (the "Change of Control Payment
Date"); (4) that any Security not tendered shall continue to accrue interest;
(5) that, unless the Company defaults in the payment of the Change of Control
Payment, all Securities accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Payment Date;
(6) that Holders electing to have any Securities purchased pursuant to a Change
of Control Offer shall be required to surrender the Securities, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Securities
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; (7) that Holders shall be entitled to withdraw their
-43-
49
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Securities delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Securities
purchased; and (8) that Holders whose Securities are being purchased only in
part shall be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered, which unpurchased portion must be equal
to Euro1,000 in principal amount or an integral multiple thereof. The Company
shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with the repurchase of the Securities
as a result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with the Change of Control provisions of
this Indenture, the Company shall comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under the
Change of Control provisions of this Indenture by virtue of such conflict.
On the Change of Control Payment Date, the Company shall, to
the extent lawful:
(1) accept for payment all Securities or portions of Securities
properly tendered pursuant to the Change of Control offer;
(2) deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of
Securities properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities
so accepted together with an Officers' Certificate stating the
aggregate principal amount of Securities or portions of
Securities being purchased by the Company.
The Paying Agent shall promptly mail to each Holder of
Securities properly tendered the Change of Control Payment for such Securities,
and the Trustee shall promptly authenticate and mail (or cause to be transferred
by book entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each
new Security will be in a principal amount of Euro1,000 or an integral multiple
of Euro1,000.
The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
-44-
50
The provisions described above that require the Company to
make a Change of Control Offer following a Change of Control will be applicable
regardless of whether any other provisions of this Indenture are applicable.
Except as described above with respect to a Change of Control, this Indenture
does not contain provisions that permit the Holders of the Securities to require
that the Company repurchase or redeem the Securities in the event of a takeover,
recapitalization or similar transaction.
The Company shall not be required to make a Change of Control
Offer upon 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 Indenture applicable to a Change of Control Offer
made by the Company and purchases all Securities properly tendered and not
withdrawn under such Change of Control Offer.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. An "Event of Default" occurs with
respect to the Securities if (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and such default continues for a period of
30 days;
(b) the Company defaults in the payment of the principal of or any
premium on any Security when the same becomes due and payable at its Maturity or
on redemption or otherwise;
(c) the Company fails to comply in any material respect with any of its
agreements or covenants in, or any of the provisions of, this Indenture with
respect to any Security (other than an agreement, covenant or provision for
which non-compliance is elsewhere in this Section specifically dealt with), and
such non-compliance continues for a period of 60 days after there has been given
by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities 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;
(d) a default with respect to other indebtedness of the Company for
borrowed money in an aggregate principal amount of at least $30,000,000, which
default (a) shall constitute a failure to pay any portion of the principal when
due and payable after the
-45-
51
expiration of an applicable grace period with respect thereto or (b) shall
result in an acceleration thereof, and such acceleration shall not be rescinded
or annulled, or such debt shall not be paid in full within a period of 30 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities a written notice
specifying such event of default and requiring the Company to cause such
acceleration to be rescinded or annulled or to pay in full such debt and stating
that such notice is a "Notice of Default" hereunder; (it being understood
however, that the Trustee shall not be deemed to have knowledge of such default
under such agreement or instrument unless either (A) a Responsible Officer of
the Trustee shall have actual knowledge of such default or (B) a Responsible
Officer of the Trustee shall have received written notice thereof from the
Company, from any Holder, from the holder of any such indebtedness or from the
trustee under any such agreement or other instrument); provided, however, that
if such default under such agreement or instrument is remedied or cured by the
Company or waived by the holders of such indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of either the
Trustee or any of such Holders;
(e) the entry of final judgment or orders against the Company or its
Subsidiaries in excess of $30,000,000 individually or in the aggregate, not
covered by insurance, that is not paid, discharged or otherwise stayed, by
appeal or otherwise, within 60 days after the entry of such judgments or orders;
(f) any Guarantee of the Securities by a Significant Subsidiary ceases
to be in full force and effect or any Guarantor that is a Significant Subsidiary
denies or disaffirms its obligations under its Guarantee of the Securities,
except, in each case, in connection with a release of a Guarantee in accordance
with the terms of the Indenture;
(g) the Company or a Significant Subsidiary, pursuant to or within the
meaning of any Bankruptcy Law, (A) commences a voluntary case or proceeding, (B)
consents to the entry of an order for relief against it in an involuntary case
or proceeding, (C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, (D) makes a general assignment for the
benefit of its creditors, (E) makes an admission in writing of its inability to
pay its debts generally as they become due or (F) takes corporate action in
furtherance of any such action; or
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (A) is for relief against the Company or a Significant
Subsidiary, in an involuntary case, (B) adjudges the Company or a Significant
Subsidiary as bankrupt or insolvent, or approves as properly filed a petition
seeking reorganization, arrangement, and adjustment or composition of or in
respect of the Company or a Significant Subsidiary, or appoints a Custodian of
the Company or a Significant Subsidiary, or for all
-46-
52
or substantially all of its property, or (C) orders the liquidation of the
Company or a Significant Subsidiary and the decree remains unstayed and in
effect for 60 days.
The Company shall deliver to the Trustee, as soon as practicable,
written notice in the form of an Officers' Certificate of any Default, its
status and what action the Company is taking or proposes to take with respect
thereto.
As used in this Indenture, the term "Bankruptcy Law" means Title 11,
U.S. Code, or any similar federal or state bankruptcy, insolvency,
reorganization or other law for the relief of debtors. As used in this
Indenture, the term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
SECTION 6.2. Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities at the time Outstanding occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of all of the Outstanding Securities, by written notice to the Company
(and if given by the Holders, to the Trustee), may declare the principal of and
accrued interest, if any, on the Securities to be due and payable and upon any
such declaration such principal and interest, if any, shall be immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Trustee, may rescind and annul
such declaration and its consequences if all existing Defaults and Events of
Default with respect to Securities, other than the non-payment of the principal
of, premium, if any, and interest, if any, on Securities which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 6.7. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any Security, if
any, when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the Holder of such Security, the
whole amount then due and payable on such Security for principal, premium, if
any, and interest, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue
-47-
53
principal, premium, if any, and on any overdue interest, if any, at the rate or
rates prescribed therefor in such Security and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to the Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
secure any other proper remedy including, without limitation seeking recourse
against any Guarantor.
SECTION 6.4. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents and take such actions
authorized under the Trust Indenture Act as may be necessary or advisable in
order to have the claims of the Trustee and the Holders of Securities allowed in
any judicial proceedings relating to the Company (or any other obligor upon the
Securities, including any Guarantor), its creditors or its property. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.9.
SECTION 6.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or any Guarantee may be prosecuted and enforced by the Trustee, in
its own name as an express trust, without the possession of any of the
Securities or the production thereof in any proceeding relating thereto and any
recovery of judgment shall, after provision for the reasonable fees and expenses
of the Trustee and its counsel, be for the ratable benefit of the Holders of the
Securities in respect to which judgment was recovered.
SECTION 6.6. Delay or Omission Not Waiver. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall impair any such right or remedy or constitute a
waiver of or acquiescence in any such Event of Default.
-48-
54
SECTION 6.7. Waiver of Past Defaults. In addition to the provisions of
Section 6.2, the Holders of a majority in aggregate principal amount of
Outstanding Securities by written notice to the Trustee may waive on behalf of
the Holders of all Securities a past Default or Event of Default and its
consequences except (a) a Default or Event of Default in the payment of the
principal of, premium, if any, or interest, if any, on any Security or (b) in
respect of a covenant or provision hereof which pursuant to Section 9.2 cannot
be amended or modified without the consent of the Holder of each Outstanding
Security adversely affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture.
SECTION 6.8. Control by Majority. The Holders of a majority in
aggregate principal amount of the Outstanding Securities 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 it with
respect to the Securities; provided, however, that (a) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture (b) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities not consenting or that would in the good faith
judgment of the Trustee have a substantial likelihood of involving the Trustee
in personal liability and (c) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction. Prior to
the taking of any action hereunder, the Trustee shall be entitled to reasonable
indemnification satisfactory to the Trustee against all losses and expenses
caused by taking or not taking such action. This paragraph shall be in lieu of
Section 316(a)(1)(A) of the Trust Indenture Act and such Section 316(a)(1)(A) is
hereby expressly excluded from this Indenture, as permitted by the Trust
Indenture Act.
SECTION 6.9. Limitation on Suits by Holders. No Holder of any Security
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) the Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities;
(b) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities have made a written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be, or
which may be, incurred by the Trustee in pursuing the remedy;
-49-
55
(d) the Trustee for 60 days after its receipt of such notice, request
and the offer of indemnity has failed to institute any such proceedings; and
(e) during such 60 day period, the Holders of a majority in aggregate
principal amount of the Outstanding Securities have not given to the Trustee a
direction inconsistent with such written request.
No one or more Holders 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 of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
SECTION 6.10. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, but subject to Section 3.2, the right of any
Holder of a Security to receive payment of principal of, premium, if any, and,
subject to Sections 2.1, 2.3 and 2.13, interest, if any, on the Security, on or
after the respective due dates expressed in the Security (or, in case of
redemption, on the redemption dates), or, subject to Section 6.9, to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.11. Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, if any, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 7.9;
Second: to Holders of Securities in respect of which or for the benefit
of which such money has been collected for amounts due and unpaid on such
Securities for principal of, premium, if any, and interest, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium, if any, and interest, if any,
respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.11. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
-50-
56
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Guarantors, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 2.10, no right or
remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any existing right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14. Waiver of Usury, Stay or Extension Laws. Each of the
Company and the Guarantors covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 6.15. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant.
-51-
57
ARTICLE VII
Trustee
SECTION 7.1. Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default, the Trustee's
duties and responsibilities under this Indenture shall be governed by Section
315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing with
respect to the Securities , the Trustee shall exercise the rights and powers
vested in it by this Indenture with respect to the Securities, and shall 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 own affairs.
(c) 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 this subsection shall not be
construed to limit the effect of subsection (a) of this Section; the Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and 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 in accordance with Section 6.8
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under the Indenture.
SECTION 7.2. Rights of Trustee. Subject to the provisions of the Trust
Indenture Act:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper party or parties. The Trustee need
not investigate any fact or matter stated in the document;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed)
-52-
58
may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care;
(f) the Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers;
(g) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(i) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(j) whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 7.2;
(k) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and
-53-
59
shall be enforceable by, the Trustee in each of its capacities hereunder, and to
each agent, custodian and other Person employed to act hereunder.
SECTION 7.3. Trustee May Hold Securities. The Trustee, any Paying
Agent, any Registrar or any other agent of the Company in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the
Company, an Affiliate of the Company or Subsidiary of the Company with the same
rights it would have if it were not Trustee, Paying Agent, Registrar or such
other agent.
SECTION 7.4. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon in writing with the
Company.
SECTION 7.5. Trustee's Disclaimer. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities or any coupon. The
Trustee shall not be accountable for the Company's use of the proceeds from the
Securities or for monies paid over to the Company pursuant to the Indenture.
SECTION 7.6. Notice of Defaults. If a Default occurs and is continuing
with respect to the Securities and if it is actually known to a Responsible
Officer of the Trustee, the Trustee shall, within 90 days after it occurs,
transmit by mail to the Holders of Securities, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, notice of all Defaults
known to it unless such Default shall have been cured or waived; provided,
however, that except in the case of a Default in payment on the Securities, the
Trustee may withhold the notice if and so long as its board of directors, its
executive committee or a committee of its Responsible Officers in good faith
determines that withholding such notice is in the interests of Holders of
Securities; and provided, further, that in the case of any Default of the
character specified in Section 6.1(c) with respect to Securities, no such notice
to Holder shall be given until at least 30 days after the occurrence thereof.
SECTION 7.7. Reports by Trustee to Holders. Within 60 days after each
May 15 of each year commencing with the first May 15 after Closing Date, the
Trustee shall transmit by mail to all Holders of Securities as provided in
Section 313(c) of the Trust Indenture Act a brief report dated as of such May 15
if required by and in compliance with Section 313(a) of the Trust Indenture Act.
The Trustee shall also comply with Section 313(b) of the Trust Indenture Act, if
applicable. A copy of each such report required pursuant to Section 313(a) or
313(b) of the Trust Indenture Act shall, at the time
-54-
60
of such transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission and
with the Company. The Company will promptly notify the Trustee when the
Securities are listed on, or delisted from, any stock exchange.
SECTION 7.8. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of the Securities. If the Trustee is not
the Registrar, the Company shall furnish to the Trustee semiannually on or
before the last day of June and December in each year, and at such other times
as the Trustee may request in writing, a list, in such form and as of such date
as the Trustee may reasonably require containing all the information in the
possession or control of the Registrar, the Company or any of its Paying Agents
other than the Trustee as to the names and addresses of Holders of the
Securities.
SECTION 7.9. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time such
reasonable compensation for its services as the Company and the Trustee shall
agree in writing from time to time. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it in connection with the performance of its duties under
this Indenture. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
(b) The Company and the Guarantors, jointly and severally, shall
indemnify the Trustee or any Predecessor Trustee and their agents for, and hold
them harmless against, any loss, liability, damage, claim or reasonable expense
including taxes (other than taxes based upon or determined or measured by the
income of the Trustee) incurred by it arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company or the Guarantors, as applicable, shall
defend the claim and the Trustee shall cooperate in the defense. The Company or
the Guarantors, as applicable, need not pay for any settlement made without its
consent.
(c) The Company or the Guarantors, as applicable, need not reimburse
any expense or indemnify against any loss, liability, damage or claim incurred
by the Trustee through negligence or bad faith or willful misconduct.
(d) To secure the payment obligations of the Company and the Guarantors
pursuant to this Section, the Trustee shall have a lien prior to the Securities
on all money
-55-
61
or property held or collected by the Trustee, except that held in trust to pay
principal, premium, if any, and interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 6.1(g) or Section 6.1(h), 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 shall survive the termination of this
Indenture.
SECTION 7.10. Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in Section 7.11.
(b) The Trustee may resign at any time with respect to the Securities
by giving written notice thereof to the Company.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities may remove the Trustee by so notifying the Trustee and
the Company and may appoint a successor Trustee with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months; or
(2) the Trustee shall cease to be eligible under Section 7.12
of this Indenture or Section 310(a) of the Trust Indenture Act and
shall fail to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge
of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(i) the Company by or pursuant to a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona fide
Holder of a Security 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
-56-
62
Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the instrument of acceptance by a successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee resigning or
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities.
(f) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee and shall comply with the
applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by the Holders of a majority in principal
amount of the Outstanding Securities delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
7.11, become the successor Trustee with respect to the Securities and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 7.11, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
SECTION 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, every
such successor Trustee shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee, without further act, deed or conveyance, shall become vested
with all the rights, powers and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to the successor Trustee all such rights, powers and trusts referred
to in paragraph (a) of this Section.
-57-
63
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
(d) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee in the manner
provided for notices to the Holders of Securities in Section 11.2. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 7.12. Eligibility; Disqualification. There shall at all times
be a Trustee hereunder which shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $75,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then, for the purposes of this Section, 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 the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect heretofore specified
in this Article.
SECTION 7.13. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 7.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent with respect to the Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue, exchange, registration of transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, a
copy of which instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
-58-
64
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment to all Holders of Securities with respect to which such
Authenticating Agent will serve in the manner set forth in Section 11.2. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent
herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
(including legal fees) for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities described in the within-mentioned
Indenture.
---------------------------------
as Trustee
by
---------------------------------
as Authenticating Agent
-59-
65
by
---------------------------------
Authorized Signatory
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Termination of Company's and Guarantors' Obligations Under
this Indenture. This Indenture shall upon a Company Request cease to be of
further effect with respect to the Securities (except as to any surviving rights
of registration of transfer or exchange of such Securities and replacement of
such Securities which may have been lost, stolen or mutilated as herein
expressly provided for) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities when
(1) either
(A) all such Securities previously authenticated and
delivered (other than (i) such Securities which have been destroyed,
lost or stolen and which have been replaced or paid, as provided in
Section 2.10, and (ii) such Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust as provided in Section 3.3) have been delivered to the
Trustee for cancellation; or
(B) all Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company, and the
Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency in which the Securities
are payable, sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest, if any,
with respect thereto, on the date of such deposit (in the
-60-
66
case of Securities which have become due and payable) or at the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 7.9, the
obligations of the Company to any Authenticating Agent under Section 7.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 8.2 and
the last paragraph of Section 3.3 shall survive.
SECTION 8.2. Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 3.3, all money deposited with the Trustee pursuant
to Section 8.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal, premium, if any, and interest, if any, for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.3. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may at its option by or pursuant to Board Resolution, at
any time, elect to have Section 8.4 or Section 8.5 be applied to such
Outstanding Securities upon compliance with the conditions set forth below in
this Article.
SECTION 8.4. Defeasance and Discharge. Upon the Company's exercise of
the option specified in Section 8.3 applicable to this Section, the Company and
the Guarantors shall be deemed to have been discharged from its obligations with
respect to such Securities on and after the date the conditions set forth in
Section 8.6 are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 8.7 and the other
Sections of this Indenture referred to in clause (ii) of this Section, and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall on a Company Order execute proper instruments
acknowledging the
-61-
67
same), except the following, which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Securities to receive,
solely from the trust funds described in Section 8.6(a) and as more fully set
forth in such Section, payments in respect of the principal of, premium, if any,
and interest, if any, on such Securities when such payments are due; (ii) the
Company's and the Guarantors' obligations with respect to such Securities under
Sections 2.4, 2.6, 2.10, 3.2 and 3.3; (iii) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (iv) this Article VIII. Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under Section 8.5
with respect to such Securities. Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.
SECTION 8.5. Covenant Defeasance. Upon the Company's exercise of the
option specified in Section 8.3 applicable to this Section, the Company shall be
released from its obligations under Sections 3.4, 3.7, 3.8, 3.9, 4.1 and 5.9
(and with respect to Section 3.6, shall be required to certify only with respect
to those covenants not defeased pursuant to this Section 8.5) with respect to
such Securities on and after the date the conditions set forth in Section 8.6
are satisfied (hereinafter, "covenant defeasance"), and such Securities shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 3.4, 3.7, 3.8, 3.9, 4.1 and 5.9, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.1(c) or otherwise, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 8.6. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to the application of Section 8.4 or Section
8.5 to any Securities:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the requirements of
Section 7.12 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 8.3 through 8.9 inclusive and the last
paragraph of Section 3.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section 8.6(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities, with instructions to the Trustee as to the application thereof,
(A) money in an
-62-
68
amount, or (B) Government Obligations which through the payment of interest, if
any, and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment referred to
in clause (x) or (y) of this Section 8.6(a), money in an amount or (C) a
combination thereof in an amount sufficient, without reinvestment, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee to pay
and discharge the principal of, premium, if any, and interest, if any, on such
Securities on the Maturity of such principal or installment of principal or
interest, if any. Before such a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption or purchase of Securities at a
future date or dates in accordance with Article V which shall be given effect in
applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a Default or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under,
any other material agreement or instrument to which the Company is a party or by
which it is bound, in each case, on the date of such deposit pursuant to Section
8.6(a).
(c) In the case of an election under Section 8.4, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
to the effect that the Company has received from, or there has been published
by, the Internal Revenue Service a ruling to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
(d) In the case of an election under Section 8.5, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 8.4 or the covenant defeasance under
Section 8.5 (as the case may be) have been complied with.
-63-
69
(f) No Default or Event of Default under Section 6.1(g) or 6.1(h) with
respect to such Securities shall have occurred and be continuing during the
period commencing on the date of such deposit and ending on the 91st day after
such date (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(g) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940 unless such trust shall be
registered under such Act or exempt from registration thereunder.
SECTION 8.7. Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 3.3, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 8.6 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
SECTION 8.8. Repayment to Company. To the extent permitted by the
Financial Accounting Standards Board Statement of Financial Accounting Standards
No. 76, as amended or interpreted by the Financial Accounting Standards Board
from time to time, or any successor thereto ("Standard No. 76"), or to the
extent permitted by the Commission, the Trustee shall, from time to time, take
one or more of the following actions as specified in a Company Request: (a)
retransfer, reassign and deliver to the Company any securities deposited with
the Trustee pursuant to Section 8.6(a), provided that the Company shall, in
substitution therefor, simultaneously transfer, assign and deliver to the
Trustee other Governmental Obligations appropriate to satisfy the Company's
obligations in respect of the relevant Securities; and (b) the Trustee and
Paying Agent shall promptly pay to the Company upon Company Request any excess
money or securities held by them at any time, including, without limitation, any
assets deposited with the Trustee pursuant to Section 8.6(a) exceeding those
necessary for the purposes of Section 8.6(a). The Trustee shall not take the
actions described in subsections (a) and (b) of this Section 8.8 unless it shall
have first received a written report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or another
nationally recognized independent public accounting firm, (i) expressing their
opinion that the contemplated action is permitted by Standard No. 76 or the
Commission for transactions accounted for as extinguishment of debt under the
circumstances described in paragraph 3.c of Standard No. 76 or any successor
provision, and (ii) verifying the accuracy, after giving effect to such action
or actions, of the computations which demonstrate that the amounts remaining to
be earned
-64-
70
on the Government Obligations deposited with the Trustee pursuant to Section
8.6(a) will be sufficient for purposes of Section 8.6(a).
SECTION 8.9. Indemnity for Government Obligations. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest, if any, and any other amount received on
such Government Obligations.
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or pursuant
to a Board Resolution, the Guarantors and the Trustee at any time and from time
to time, may enter into indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants and obligations of the
Company herein and in the Securities; or
(b) to add to the covenants of the Company or the Guarantors for the
benefit of the Holders of the Securities or to surrender any right or power
herein conferred upon the Company or the Guarantors; provided, however, that in
respect of any such additional covenant 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 limit the
remedies available to the Trustee upon such Default; or
(c) to add any additional Events of Default; or
(d) to secure the Securities; or
(e) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trust hereunder by the Trustee, pursuant to the requirements of Section
7.11; or
(f) if allowed without penalty under applicable laws and regulations,
to permit payment in respect of the Securities in bearer form in the United
States; or
-65-
71
(g) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Indenture, provided such
action shall not adversely affect the interests of the Holders of Securities
affected thereby; or
(h) to cure an ambiguity or correct any mistake, provided such action
shall not adversely affect the interests of the Holders of Securities; or
(i) to add a Guarantor pursuant to Section 10.6 or remove a Guarantor
which, in accordance with the terms of this Indenture, ceases to be liable in
respect of its Guarantee.
SECTION 9.2. Supplemental Indentures with Consent of Holders. With the
written consent of the Holders of a majority of the aggregate principal amount
of the Outstanding Securities adversely affected by such supplemental indenture,
the Company, when authorized by or pursuant to a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any other indenture supplemental hereto or to modify the rights of the Holders
of such Securities; provided, however, that without the consent of the Holder of
each Outstanding Security affected thereby, a supplemental indenture under this
Section may not:
(a) change the Stated Maturity of the principal of, or premium, if any,
on, or any installment of principal of or premium, if any, or interest, if any,
on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption, repurchase or repayment
thereof, or change the manner in which the amount of any principal thereof or
premium, if any, or interest, if any, thereon is determined, or change the Place
of Payment where or the currency in which any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture;
(c) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 3.2;
(d) modify or change any provision of any Guarantee in a manner which
adversely affects the holders of the Securities; or
-66-
72
(e) make any change in Section 6.7 or this Section 9.2 except to
increase any percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holders of
each Outstanding Security affected thereby.
It is not necessary under this Section 9.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Upon the request of the Company, accompanied by an Officers'
Certificate and a Board Resolution authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may, but shall not be obligated to, enter
into such supplemental indenture.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall be set forth in a supplemental indenture
that complies with the Trust Indenture Act as then in effect.
SECTION 9.4. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.5. Effect of Supplemental Indentures . Upon the execution of
any supplemental indenture under this article, this Indenture shall be modified
in accordance therewith and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
-67-
73
ARTICLE X
Guarantees
SECTION 10.1. Guarantees.
(a) Subject to the provisions of this Article X, each Guarantor,
jointly and severally, hereby irrevocably and unconditionally guarantees to each
Holder of Securities and to the Trustee on behalf of the Holders (i) the due and
punctual payment of principal of, premium, if any, and interest in full on each
Security when and as the same shall become due and payable whether at Stated
Maturity, by declaration of acceleration or otherwise, (ii) the due and punctual
payment of interest on the overdue principal of, premium, if any, and interest
in full on the Securities, to the extent permitted by law, and (iii) the due and
punctual performance of all other Obligations of the Company and the other
Guarantors to the Holders or the Trustee, including without limitation the
payment of fees, expenses, indemnification or other amounts, all in accordance
with the terms of the Securities and this Indenture. In case of the failure of
the Company punctually to make any such principal or interest payment or the
failure of the Company or any other Guarantor to perform any such other
Obligation, each Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at Stated
Maturity, by declaration of acceleration or otherwise, and as if such payment
were made by the Company and to perform any such other Obligation of the Company
immediately. Each Guarantor hereby further agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by the Trustee or the
Holders in enforcing any rights under these Guarantees. The Guarantees under
this Article X are guarantees of payment and not of collection.
(b) Each of the Company and the Guarantors hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company or any other Guarantor, any
right to require a proceeding first against the Company or any other Guarantor,
protest or notice with respect to the Securities or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that these Guarantees will not
be discharged except by complete performance of the Obligations contained in the
Securities and in this Indenture, or as otherwise specifically provided therein
and herein.
(c) Each Guarantor hereby waives and relinquishes:
(i) any right to require the Trustee, the Holders or
the Company (each, a "Benefitted Party") to proceed against the
Company, the Subsidiaries of the Company or any other Person or to
proceed against or exhaust any security held by a Benefitted Party at
any time or to pursue any other remedy in any secured party's power
before proceeding against the Guarantors;
-68-
74
(ii) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of any other Person
or Persons or the failure of a Benefitted Party to file or enforce a
claim against the estate (in administration, bankruptcy or any other
proceeding) of any other Person or Persons;
(iii) demand, protest and notice of any kind (except
as expressly required by this Indenture), including but not limited to
notice of the existence, creation or incurring of any new or additional
indebtedness or obligation or of any action or non-action on the part
of the Guarantors, the Company, the Subsidiaries of the Company, any
Benefitted Party, any creditor of the Guarantors, the Company or the
Subsidiaries of the Company or on the part of any other Person
whomsoever in connection with any obligations the performance of which
are hereby guaranteed;
(iv) any defense based upon an election of remedies
by a Benefitted Party, including but not limited to an election to
proceed against the Guarantors for reimbursement;
(v) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger
in amount nor in other respects more burdensome than that of the
principal;
(vi) any defense arising because of a Benefitted
Party's election, in any proceeding instituted under the Bankruptcy
Law, of the application of Section 1111(b)(2) of the Bankruptcy Law;
and
(vii) any defense based on any borrowing or grant of
a security interest under Section 364 of the Bankruptcy Law.
(d) Each Guarantor further agrees that, as between such Guarantor, on
the one hand, and Holders and the Trustee, on the other hand, (i) for purposes
of the relevant Guarantee, the maturity of the Obligations Guaranteed by such
Guarantee may be accelerated as provided in Article VI, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Obligations guaranteed thereby, and (ii) in the event of any acceleration of
such Obligations (whether or not due and payable) such Obligations shall
forthwith become due and payable by such Guarantor for purposes of such
Guarantee.
(e) The Guarantees shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment, or any part thereof,
of principal of, premium, if any, or interest on any of the Securities is
rescinded or must otherwise be returned by the
-69-
75
Holders or the Trustee upon the insolvency, bankruptcy or reorganization of the
Company or any of the Guarantors, all as though such payment had not been made.
(f) Each Guarantor shall be subrogated to all rights of the Holders
against the Company in respect of any amounts paid by such Guarantor pursuant to
the provisions of the Guarantees or this Indenture; provided, however, that a
Guarantor shall not be entitled to enforce or to receive any payments until the
principal of, premium, if any, and interest on all Securities issued hereunder
shall have been paid in full.
SECTION 10.2. Obligations of Guarantors Unconditional. Each Guarantor
hereby agrees that its Obligations hereunder shall be Guarantees of payment and
shall be unconditional, irrespective of and unaffected by the validity,
regularity or enforceability of the Securities or this Indenture, or of any
amendment thereto or hereto, the absence of any action to enforce the same, the
waiver or consent by any Holder or by the Trustee with respect to any provisions
thereof or of this Indenture, the entry of any judgment against the Company or
any other Guarantor or any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor.
SECTION 10.3. Limitation on Guarantors' Liability. Each Guarantor and
by its acceptance hereof each Holder, hereby confirms that it is the intention
of all such parties that the Guarantee by such Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
Obligations of such Guarantor under this Article X shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under this Article X, result in the
Obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance under applicable federal or state law.
SECTION 10.4. Releases of Guarantees.
(a) If the Securities are defeased in accordance with the terms of
Article VIII of this Indenture, then each Guarantor shall be deemed to have been
released from and discharged of its obligations under its Guarantee as provided
in Article VIII hereof, subject to the conditions stated therein.
(b) In the event an entity that is a Guarantor ceases to be a guarantor
under the Credit Agreement (or any other credit agreement renewing, refunding,
replacing, restating, refinancing or extending the Credit Agreement), such
entity shall also cease to be a Guarantor, whether or not a Default or an Event
of Default is then outstanding.
-70-
76
(c) Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of, premium, if any, and
interest on the Securities and for the other obligations of the Company, such
Guarantor and any other Guarantor under this Indenture as provided in this
Article X.
SECTION 10.5. Application of Certain Terms and Provisions to
Guarantors.
(a) For purposes of any provision of this Indenture which provides for
the delivery by any Guarantor of an Officers' Certificate or an Opinion of
Counsel or both, the definitions of such terms in Section 1.1 shall apply to
such Guarantor as if references therein to the Company were references to such
Guarantor.
(b) Any request, direction, order or demand which by any provision of
this Indenture is to be made by any Guarantor shall be sufficient if evidenced
by a Company Order; provided that the definition of such term in Section 1.1
hereof shall apply to such Guarantor as if references therein to the Company
were references to such Guarantor.
(c) 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
Securities to or on any Guarantor may be given or served as described in Section
11.2 hereof.
(d) Upon any demand, request or application by any Guarantor to the
Trustee to take any action under this Indenture, such Guarantor shall furnish to
the Trustee such certificates and opinions as are required in Section 7.2 hereof
as if all references therein to the Company were references to such Guarantor.
SECTION 10.6 Additional Guarantors. The Company shall cause each
subsidiary of the Company that becomes a guarantor under the Credit Agreement
(or any other credit agreement renewing, refunding, replacing, restating,
refinancing or extending the Credit Agreement), after the Closing Date, to
execute and deliver to the Trustee, promptly upon any such formation or
acquisition (a) a supplemental indenture in form and substance satisfactory to
the Trustee which subjects such subsidiary to the provisions of the Indenture as
a Guarantor, and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such subsidiary and
constitutes the legal, valid, binding and enforceable obligation of such
subsidiary (subject to such customary exceptions concerning fraudulent
conveyance laws, creditors' rights and equitable principles as may be acceptable
to the Trustee in its discretion).
-71-
77
ARTICLE XI
Miscellaneous
SECTION 11.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control. Each Guarantor in addition to performing its obligations
under its Guarantee shall perform such other obligations as may be imposed upon
it with respect to this Indenture under the TIA.
SECTION 11.2. Notices. Any notice or communication shall be in writing,
in the English language and delivered in person or mailed by first-class mail or
transmitted by facsimile (with written confirmation of receipt) addressed as
follows:
if to the Company or any Guarantor:
Tower Automotive, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman of the Board
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if (i) in writing and mailed, first-class postage prepaid,
to each Securityholder affected by such event, at his address as it appears in
the Note Register, not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such notice and (ii) if
and so long as the Securities are listed on the Luxembourg Stock Exchange and
the rules of such Stock Exchange shall so require, published in a daily
newspaper having general circulation in Luxembourg (which is expected to be the
Luxemburger Wort).
-72-
78
In any case where notice to Securityholders is given by mail, neither
the failure to mail a notice or communication to a Securityholder nor any defect
in any notice so mailed shall affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it. If by reason
of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice as provided above, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 11.3. Communication by Holders with other Holders.
Securityholders may communicate pursuant to TIA ss.3l2(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss.312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company or the Guarantors, as the case may be,
to the Trustee to take or refrain from taking any action under this Indenture,
the Company or the Guarantor, as the case may be, shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee 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
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
SECTION 11.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(b) 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;
-73-
79
(c) a statement that, in the opinion of such individual, 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
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual
matters on an Officers' Certificate or on certificates of public officials.
SECTION 11.6. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
Outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities Outstanding at the time shall be
considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by, or a meeting of, Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.8. Legal Holidays. In any case where any interest payment
date, Redemption Date, Stated Maturity or Maturity of any Security shall not be
a Business Day, then (notwithstanding any other provision of this Indenture or
of any Security) payment of principal, premium, if any, or interest, if any,
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 such date; provided that no
interest shall accrue on the amount so payable for the period from and after
such interest payment date, Redemption Date, Stated Maturity or Maturity, as the
case may be, if the payment is made on the next succeeding Business Day.
SECTION 11.9. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND THE
GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK. THE COMPANY AND EACH GUARANTOR AGREES TO SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, COUNTY OF NEW YORK,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES AND THE GUARANTEES.
-74-
80
SECTION 11.10. No Recourse Against Others. An incorporator, director,
officer, employee, stockholder or controlling person, as such, of each of the
Company or any Guarantors shall not have any liability for any obligations of
the Company under the Securities, this Indenture or the Guarantees or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Company and the
Guarantors in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 11.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 11.13. Variable Provisions. The Company initially appoints the
Trustee as U.S. Paying Agent and Registrar with respect to any Global Securities
and Deutsche Bank Luxembourg S.A. as Luxembourg Paying Agent.
SECTION 11.14. Qualification of Indenture. The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys' fees and expenses for the Company, the Trustee and the
Holders) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Securities and printing
this Indenture and the Securities. The Trustee shall be entitled to receive from
the Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 11.15. Table of Contents; Headings. The table of contents,
cross- reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 11.16. Separability. In case any provision of this Indenture or
the Securities or the Guarantees shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.17. Benefits of Indenture. Nothing in this Indenture or in
the Securities or the Guarantees, expressed or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
-75-
81
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ISSUER:
▇. ▇. TOWER CORPORATION (a Michigan
Corporation)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PARENT GUARANTOR:
TOWER AUTOMOTIVE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUBSIDIARY GUARANTORS:
TOWER AUTOMOTIVE PRODUCTS
COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇. ▇. TOWER CORPORATION (an Indiana
Corporation)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-77-
82
▇. ▇. TOWER CORPORATION (a Kentucky
Corporation)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
KALAMAZOO STAMPING AND DIE
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TRYLON CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TOWER AUTOMOTIVE DELAWARE,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ACTIVE TOOL & MANUFACTURING
CO., INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-78-
83
ACTIVE PRODUCTS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TOWER AUTOMOTIVE
INTERNATIONAL FUNDING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TOWER AUTOMOTIVE SERVICES AND
TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TOWER AUTOMOTIVE
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TOWER AUTOMOTIVE
INTERNATIONAL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-79-
84
ALGOODS USA INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TRUSTEE:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
-80-
85
EXHIBIT A
[Form of Initial Security]
[FACE OF INITIAL SECURITY]
[INCLUDE APPROPRIATE LEGENDS AS SET FORTH IN SECTION 2.1(c) OF THE INDENTURE]
86
▇. ▇. TOWER CORPORATION
9.25% Senior Note due 2010
*
ISIN
Common Code
▇. ▇. TOWER CORPORATION, a Michigan corporation (the "Company," which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to _________________, or its registered assigns, the
principal sum indicated on the Schedule of Increases or Decreases in Global
Security attached hereto, on August 1, 2010. The Global Note is a [Rule 144A],
[Regulation S] [Institutional Accredited Investor] Global Note under the
Indenture hereinafter referred to.
Interest Payment Dates: February 1 and August 1, commencing February 1,
2001.
Regular Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
87
IN WITNESS WHEREOF, the Company has caused this Security to be executed
manually or by facsimile by its duly authorized officers.
Dated: July 25, 2000 ▇. ▇. TOWER CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Certificate of Authentication:
This is one of the Securities described
in the within-mentioned Indenture.
[Name of Authentication Agent]
By:
---------------------------------------
Authorized Signatory
Dated: July 25, 2000
88
[REVERSE SIDE OF SECURITY]
▇. ▇. TOWER CORPORATION
9.25% Senior Note due 2010
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Principal and Interest.
▇. ▇. Tower Corporation, a Michigan corporation (the "Company"), promises
to pay interest on the principal amount of this Security at a rate of 9.25% per
annum from the date of issuance until repayment at maturity or redemption. The
Company will pay interest semiannually on February 1 and August 1 of each year
(each, an "Interest Payment Date"), commencing February 1, 2001. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the Closing Date. Interest will be
computed on the basis of a 360- day year of twelve 30-day months.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand, to the extent permitted by law, at the rate borne
by this Security; it shall pay interest (including post- petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent permitted by law.
In accordance with the terms of the Exchange and Registration Rights
Agreement, dated July 25, 2000, among the Company, the Guarantors and Chase
Manhattan International Limited, Bank of America International Limited, ABN AMRO
Incorporated, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International, First Chicago Limited
and Scotia Capital (USA), Inc., the annual interest rate borne by the Initial
Securities shall be increased by 0.5% per annum over the rate shown above
("Additional Interest") with respect to the first 90-day period immediately
following the occurrence of any of the following: (A) neither an exchange offer
registration statement (the "Exchange Offer Registration Statement") nor shelf
registration statement (the "Shelf Registration Statement") is filed prior to or
on 60 days after the Closing Date, (B) neither the Exchange Offer Registration
Statement nor Shelf Registration Statement is declared effective by the
Securities and Exchange Commission prior to or on 150 days after the Closing
Date (or in the case of a Shelf Registration Statement required to be filed in
response to a change in law or the applicable interpretations of the Commission,
if later, 90 days after publication of the change in law or interpretation), (C)
the Company has not exchanged Exchange Securities for all Initial Securities
validly tendered in accordance with the terms of an exchange offer (the
"Exchange Offer") on or prior to 180 days after the Closing Date, or (D) if
applicable, the day the Shelf Registration Statement ceases to be effective if
the Shelf Registration Statement has been declared effective but then ceases to
be effective for a period in excess of 30 days at any time prior to the
expiration
89
of the holding period referred to in Rule 144(k) (each event referred to in
clauses (A) through (D), a "Registration Default"). Any amount of Additional
Interest will be payable in cash semiannually, in arrears, on each Interest
Payment Date and will cease to accrue on the date (1) the Exchange Offer
Registration Statement or Shelf Registration Statement is filed, in the case of
(A) above, (2) the Exchange Offer Registration Statement or Shelf Registration
Statement is declared effective, in the case of (B) above, and (3) the Exchange
Securities are exchanged for all Initial Securities validly tendered in
accordance with the terms of the Exchange Offer, in the case of (C) above, or
(4) the Shelf Registration Statement which had ceased to remain effective prior
to the expiration of the holding period referred to in Rule 144(k) is declared
effective, in the case of (D) above. The amount of Additional Interest will
increase by an additional 0.5% with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
Additional Interest for all Registration Defaults of 1.0% per annum over the
rate shown above. The Holder of this Security is entitled to the benefits of
such Registration Rights Agreement. References herein to interest include any
Additional Interest.
Notwithstanding any other provision of the Indenture or this Security: (i)
accrued and unpaid interest on the Initial Securities being exchanged in the
Exchange Offer shall be due and payable on the next Interest Payment Date for
the Exchange Securities following the Exchange Offer and shall be paid to the
Holder on the relevant record date of the Exchange Securities issued in respect
of the Initial Securities being exchanged, (ii) interest on the Initial
Securities being exchanged in the Exchange Offer shall cease to accrue on the
date of completion of the Exchange Offer and interest on the Exchange Securities
to be issued in the Exchange Offer shall accrue from the date of completion of
the Exchange Offer and (iii) the Exchange Securities shall have no provisions
for Additional Interest.
2. Method of Payment.
The Company will pay interest on the principal amount of the Securities as
provided above on each Interest Payment Date, commencing February 1, 2001, to
the persons which are Holders (as reflected in the Register at the close of
business on the January 15 or July 15 immediately preceding the Interest Payment
Date), in each case, even if the Security is cancelled on registration of
transfer or registration of exchange after such record date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Security to a Paying Agent on or after August 1, 2010.
The Company will pay principal, premium, if any, and interest in Euros. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
Principal of, and premium, if any, and interest on, Definitive Securities
will be payable, and Definitive Securities may be presented for registration of
transfer or exchange, at the office or agency of the Company maintained for such
purpose. Principal of, and premium, if any, and interest on, Global Securities
will be payable by the Company through the Trustee to the Book-Entry Depositary
in immediately available funds. Holders of Definitive Securities will be
90
entitled to receive interest payments by wire transfer in immediately available
funds if appropriate wire transfer instructions have been received in writing by
the Trustee not less than 15 days prior to the applicable Interest Payment Date.
Such wire instructions, upon receipt by the Trustee, shall remain in effect
until revoked by such Holder. If wire instructions have not been received by the
Trustee with respect to any Holder of a Definitive Security, payment of interest
may be made by check in immediately available funds mailed to such Holder at the
address set forth upon the Register maintained by the Registrar.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York, the Trustee under the
Indenture, will act as U.S. Paying Agent, Deutsche Bank AG London will act as
Fiscal and Principal Paying Agent and Deutsche Bank Luxembourg, S.A. will act as
Luxembourg Paying Agent and the Registrar. The Company may change the Paying
Agent or transfer agent without notice to any Holder; provided that it will at
all times maintain a Paying Agent in Luxembourg so long as the Securities are
listed on the Luxembourg Stock Exchange. The Company, any Subsidiary of the
Company or any Affiliate of any of them may act as a Paying Agent or a transfer
agent, subject to certain limitations.
4. Indenture.
The Company issued the Initial Securities under an Indenture dated as of
July 25, 2000 (the "Indenture"), among the Company, the Guarantors and United
States Trust Company of New York, as trustee (the "Trustee"). The terms of the
Initial Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended
("TIA"). The Initial Securities are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of all such terms. To the
extent permitted by applicable law, in the event of any inconsistency between
the terms of this Security and the terms of the Indenture, the terms of the
Indenture shall control.
5. Guarantees.
The Securities are guaranteed by the Guarantors, subject to the release of
such guarantees under certain circumstances, as provided in the Indenture.
6. Optional Redemption.
The Securities will be redeemable, in whole or in part, upon notice as
provided in the Indenture, at any time at the option of the Company, at the
Redemption Price equal to the greater of: (i) 100% of the principal amount of
such Securities to be redeemed or (ii) as determined by a Quotation Agent, the
sum of the present values of the Remaining Scheduled Payments of the Securities
discounted to the Redemption Date, on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Dealer Reference Rate plus 50
basis points, plus, in each case, any interest accrued but not paid to the
Redemption Date.
91
Securities in original denominations larger than *1,000 may be redeemed in
part. On and after the Redemption Date, interest ceases to accrue on Securities
or portions of Securities called for redemption, unless the Company defaults in
the payment of the Redemption Price.
7. Mandatory Redemption.
Except as set forth in paragraph 8 below, the Company shall not be required
to make mandatory redemption or sinking fund payments with respect to the
Securities.
8. Repurchase at Option of Holder.
If there is a Change of Control, the Company shall be required to make an
offer (a "Change of Control Offer") to repurchase all or any part (equal to
*1,000 or an integral multiple thereof) of each Holder's Securities at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest thereon, if any, to the date
of purchase. Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
9. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in denominations of
*1,000 of principal amount and integral multiples of *1,000 in excess
thereof. A Holder may register the transfer or exchange of Securities in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer or
exchange of any Securities selected for redemption. Also, it need not register
the transfer or exchange of any Securities for a period beginning at the opening
of 15 calendar days before the day of any selection of Securities for redemption
under Section 6 hereof and ending at the close of business on the day of
selection.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as its owner for all
purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest remains
unclaimed for two years, the Trustee and the Paying Agent will pay the money
back to the Company at its request. After that, Holders entitled to the money
must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
92
12. Discharge Prior to Redemption or Maturity.
Subject to certain conditions contained in the Indenture, at any time some
or all of the obligations under the Securities, the Guarantees and the Indenture
may be terminated if the Company deposits with the Trustee money and/or
Government Obligations sufficient to pay the principal of, and premium, if any,
and interest on, the Securities to redemption or stated maturity, as the case
may be.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Securities and the
Guarantees may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Securities then outstanding, and any
existing Default or Event of Default or compliance with any provision of the
Indenture or the Securities may be waived with the consent of the Holders of at
least a majority in principal amount of the Securities then outstanding. Without
notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture, the Securities or the Guarantees to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company and
its Restricted Subsidiaries, among other things, to create Liens and engage in
Sale and Lease-Back Transactions. In addition, the Indenture imposes certain
limitations on the ability of the Company to engage in mergers and
consolidations or transfers of all or substantially all of its assets. The
Indenture requires the Company to deliver to the Trustee an Officers'
Certificate within 120 days after the end of each fiscal year stating whether or
not the signers thereof know of any Default or Event of Default under such
restrictive covenants.
15. Defaults and Remedies.
The Indenture provides that each of the following events constitutes an
Event of Default with respect to this Security: (i) failure to pay principal of
or premium, if any, on any Security when it becomes due and payable at stated
maturity, upon acceleration, redemption or otherwise; (ii) failure to pay
interest on any Security when it becomes due and payable and such Default
continues for a period of 30 days; (iii) failure to comply in any material
respect with any of the other agreements or covenants under the Indenture, which
failure is not cured within 60 days after notice is given as specified in the
Indenture; (iv) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect or any Guarantor that is a Significant Subsidiary denies or
disaffirms its obligations under its Guarantee, except, in each case, in
connection with a release of a Guarantee in accordance with the terms of this
Indenture; (v) the default (beyond any applicable grace period) with respect to
other Indebtedness of the Company for borrowed money in an aggregate principal
amount of at least $30 million, which default shall constitute a failure to pay
93
any portion of the principal when due and payable or results in the acceleration
of the maturity of such Indebtedness prior to its stated maturity or occurs at
the final maturity thereof; (vi) the entry of any final judgment or orders
against the Company or any of its Subsidiaries in excess of $30 million
individually or in the aggregate (not covered by insurance) that is not paid,
discharged or otherwise stayed (by appeal or otherwise) within 60 days after the
entry of such judgments or orders; and (vii) certain events of bankruptcy,
insolvency or reorganization of the Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing, the principal amount
hereof may be declared due and payable in the manner and with the effect
provided in the Indenture.
16. Trustee Dealings with the Company.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from and perform services for the Company or
its Affiliates and may otherwise deal with the Company or its Affiliates as if
it were not the Trustee.
17. No Recourse Against Others.
A director, officer, employee, stockholder, incorporator or other Affiliate
of the Company or any Guarantor, as such, shall not have any liability for any
obligations of the Company under the Securities, the Indenture or the Guarantees
or for any claim based on, in respect of or by reason of, such obligations or
their creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee (or authenticating
agent) executes the certificate of authentication on the other side of this
Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
20. Additional Rights of Holders of Transfer Restricted Securities.
In addition to the rights provided to Holders under the Indenture, Holders
of Transfer Restricted Securities shall have all the rights set forth in the
Registration Rights Agreement.
21. GOVERNING LAW.
94
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK. THE COMPANY AND EACH GUARANTOR AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, COUNTY OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY.
22. Successor Corporation.
In the event a successor corporation assumes all the obligations of the
Company under the Securities and the Indenture, pursuant to the terms thereof,
the Company will be released from all such obligations.
95
NOTATION OF 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 25, 2000 (the "Indenture"), among
▇.▇. Tower Corporation, the Guarantors party thereto and United States Trust
Company of New York, as trustee (the "Trustee"), (i) the due and punctual
payment of the principal of, premium, if any, and interest in full on the
Securities (as defined in the Indenture), when and as the same shall become due
and payable whether at Stated Maturity, by declaration of acceleration or
otherwise, (ii) the due and punctual payment of interest on overdue principal
of, premium, if any, and interest in full on the Securities, to the extent
permitted by law, and (iii) the due and punctual performance of all other
Obligations of the Company and the other Guarantors to the Holders or the
Trustee, including, without limitation, the payment of fees, expenses,
indemnification or other amounts, all in accordance with the terms of the
Securities and this Indenture. In case of the failure of the Company to
punctually to make any such principal or interest payment or the failure of the
Company or any other Guarantor to perform any such other Obligation, each
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at Stated Maturity, by
acceleration or otherwise. The Obligations of the Guarantors to the Holders of
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article X of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Guarantee. The obligations of the
Guarantors will be released only in accordance with the provisions of Article X
of the Indenture.
TOWER AUTOMOTIVE, INC.
By:
------------------------------------
Name:
Title:
TOWER AUTOMOTIVE PRODUCTS
COMPANY, INC.
By:
------------------------------------
Name:
Title:
▇. ▇. TOWER CORPORATION (an Indiana
Corporation)
96
By:
------------------------------------
Name:
Title:
▇. ▇. TOWER CORPORATION (a Kentucky
Corporation)
By:
------------------------------------
Name:
Title:
KALAMAZOO STAMPING AND DIE
COMPANY
By:
------------------------------------
Name:
Title:
TRYLON CORPORATION
By:
------------------------------------
Name:
Title:
TOWER AUTOMOTIVE DELAWARE, INC.
By:
------------------------------------
Name:
Title:
ACTIVE TOOL & MANUFACTURING CO., INC.
By:
------------------------------------
Name:
Title:
ACTIVE PRODUCTS CORPORATION
97
By:
------------------------------------
Name:
Title:
TOWER AUTOMOTIVE INTERNATIONAL
FUNDING, INC.
By:
------------------------------------
Name:
Title:
TOWER AUTOMOTIVE SERVICES AND
TECHNOLOGY, INC.
By:
------------------------------------
Name:
Title:
TOWER AUTOMOTIVE INTERNATIONAL,
INC.
By:
------------------------------------
Name:
Title:
TOWER AUTOMOTIVE INTERNATIONAL
HOLDINGS, INC.
By:
------------------------------------
Name:
Title:
ALGOODS USA, INC.
By:
------------------------------------
Name:
Title:
98
ASSIGNMENT FORM
To assign this Security, fill in the form below and have your signature
guaranteed: (I) or (we) assign and transfer this Security to:
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Dated:
------------------------
Your Name:
--------------------------------
(Print your name exactly as it
appears on the face of this
Security)
Your Signature:
---------------------------
(Sign exactly as your name
appears on the face of this
Security)
Signature Guarantee*:
--------------------------------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
99
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 5.9 of the Indenture, please check the box: |_|
If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 5.9 of the Indenture, state the amount you elect to
have purchased:
$----------------
Date:
-------------------------------
Your Signature:
--------------------------
(Sign exactly as your name
appears on the face of
this Note)
Tax Identification No.:
------------------
Signature Guarantee*:
--------------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
100
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security in *__________. The
following increases or decreases in this Global Security have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increases in this Global Security authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or
Exchange this Global Security this Global Security decrease (or increase) Depositary
-------------- ------------------------- -------------------------- -------------------------- ------------------------
101
EXHIBIT B
[Form of Exchange Security]
[FACE OF EXCHANGE SECURITY]
[INCLUDE APPROPRIATE LEGENDS AS SET FORTH IN SECTION 2.1(c) OF THE
INDENTURE]
102
▇. ▇. TOWER CORPORATION
9.25% Senior Note due 2010
Euro
ISIN
Common Code
▇. ▇. TOWER CORPORATION, a Michigan corporation (the "Company," which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to _________________, or its registered assigns, the
principal sum indicated on the Schedule of Increases or Decreases in Global
Security attached hereto, on August 1, 2010. The Global Note is a [Rule 144A],
[Regulation S] [Institutional Accredited Investor] Global Note under the
Indenture hereinafter referred to.
Interest Payment Dates: February 1 and August 1, commencing February 1,
2001.
Regular Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
B-2
103
IN WITNESS WHEREOF, the Company has caused this Security to be executed
manually or by facsimile by its duly authorized officers.
Dated: ▇. ▇. TOWER CORPORATION
-------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Certificate of Authentication:
This is one of the Securities described in
the within-mentioned Indenture.
[Name of Authentication Agent]
By:
-----------------------------------
Authorized Signatory
Dated:
B-3
104
[REVERSE SIDE OF SECURITY]
▇. ▇. TOWER CORPORATION
9.25% Senior Note due 2010
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Principal and Interest.
▇. ▇. Tower Corporation, a Michigan corporation (the "Company"), promises
to pay interest on the principal amount of this Security at a rate of 9.25% per
annum from the date of issuance until repayment at maturity or redemption. The
Company will pay interest semiannually on February 1 and August 1 of each year
(each, an "Interest Payment Date"), commencing February 1, 2001. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the Closing Date. Interest will be
computed on the basis of a 360- day year of twelve 30-day months.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand, to the extent permitted by law, at the rate borne
by this Security; it shall pay interest (including post- petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent permitted by law.
2. Method of Payment.
The Company will pay interest on the principal amount of the Securities as
provided above on each Interest Payment Date, commencing February 1, 2001, to
the persons which are Holders (as reflected in the Register at the close of
business on the January 15 or July 15 immediately preceding the Interest Payment
Date), in each case, even if the Security is cancelled on registration of
transfer or registration of exchange after such record date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Security to a Paying Agent on or after August 1, 2010.
The Company will pay principal, premium, if any, and interest in Euros. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
Principal of, and premium, if any, and interest on, Definitive Securities
will be payable, and Definitive Securities may be presented for registration of
transfer or exchange, at the office or agency of the Company maintained for such
purpose. Principal of, and premium, if any, and interest on, Global Securities
will be payable by the Company through the Trustee to the
B-4
105
Book-Entry Depositary in immediately available funds. Holders of Definitive
Securities will be entitled to receive interest payments by wire transfer in
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 days prior to the applicable
Interest Payment Date. Such wire instructions, upon receipt by the Trustee,
shall remain in effect until revoked by such Holder. If wire instructions have
not been received by the Trustee with respect to any Holder of a Definitive
Security, payment of interest may be made by check in immediately available
funds mailed to such Holder at the address set forth upon the Register
maintained by the Registrar.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York, the Trustee under the
Indenture, will act as U.S. Paying Agent, Deutsche Bank AG London will act as
Fiscal and Principal Paying Agent and Deutsche Bank Luxembourg, S.A. will act as
Luxembourg Paying Agent and the Registrar. The Company may change the Paying
Agent or transfer agent without notice to any Holder; provided that it will at
all times maintain a Paying Agent in Luxembourg so long as the Securities are
listed on the Luxembourg Stock Exchange. The Company, any Subsidiary of the
Company or any Affiliate of any of them may act as a Paying Agent or a transfer
agent, subject to certain limitations.
4. Indenture.
The Company issued the Exchange Securities under an Indenture dated as of
July 25, 2000 (the "Indenture"), among the Company, the Guarantors and United
States Trust Company of New York, as trustee (the "Trustee"). The terms of the
Exchange Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended
("TIA"). The Exchange Securities are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of all such terms. To the
extent permitted by applicable law, in the event of any inconsistency between
the terms of this Security and the terms of the Indenture, the terms of the
Indenture shall control.
5. Guarantees.
The Securities are guaranteed by the Guarantors, subject to the release of
such guarantees under certain circumstances, as provided in the Indenture.
6. Optional Redemption.
The Securities will be redeemable, in whole or in part, upon notice as
provided in the Indenture, at any time at the option of the Company, at the
Redemption Price equal to the greater of: (i) 100% of the principal amount of
such Securities to be redeemed or (ii) as determined by a Quotation Agent, the
sum of the present values of the Remaining Scheduled Payments of the Securities
discounted to the Redemption Date, on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Dealer Reference Rate plus 50
basis points, plus, in
B-5
106
each case, any interest accrued but not paid to the Redemption Date.
Securities in original denominations larger than (U)1,000 may be redeemed
in part. On and after the Redemption Date, interest ceases to accrue on
Securities or portions of Securities called for redemption, unless the Company
defaults in the payment of the Redemption Price.
7. Mandatory Redemption.
Except as set forth in paragraph 8 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Securities.
8. Repurchase at Option of Holder.
If there is a Change of Control, the Company shall be required to make an
offer (a "Change of Control Offer") to repurchase all or any part (equal to
(U)1,000 or an integral multiple thereof) of each Holder's Securities at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest thereon, if any, to the date
of purchase. Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
9. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in denominations of
(U)1,000 of principal amount and integral multiples of (U)1,000 in excess
thereof. A Holder may register the transfer or exchange of Securities in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer or
exchange of any Securities selected for redemption. Also, it need not register
the transfer or exchange of any Securities for a period beginning at the opening
of 15 calendar days before the day of any selection of Securities for redemption
under Section 6 hereof and ending at the close of business on the day of
selection.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as its owner for all
purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest remains
unclaimed for two years, the Trustee and the Paying Agent will pay the money
back to the Company at its request. After that, Holders entitled to the money
must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
B-6
107
12. Discharge Prior to Redemption or Maturity.
Subject to certain conditions contained in the Indenture, at any time some
or all of the obligations under the Securities, the Guarantees and the Indenture
may be terminated if the Company deposits with the Trustee money and/or
Government Obligations sufficient to pay the principal of, and premium, if any,
and interest on, the Securities to redemption or stated maturity, as the case
may be.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Securities and the
Guarantees may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Securities then outstanding, and any
existing Default or Event of Default or compliance with any provision of the
Indenture or the Securities may be waived with the consent of the Holders of at
least a majority in principal amount of the Securities then outstanding. Without
notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture, the Securities or the Guarantees to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries, among other things, to create Liens and engage
in Sale and Lease-Back Transactions. In addition, the Indenture imposes certain
limitations on the ability of the Company to engage in mergers and
consolidations or transfers of all or substantially all of its assets. The
Indenture requires the Company to deliver to the Trustee an Officers'
Certificate within 120 days after the end of each fiscal year stating whether or
not the signers thereof know of any Default or Event of Default under such
restrictive covenants.
15. Defaults and Remedies.
The Indenture provides that each of the following events constitutes an
Event of Default with respect to this Security: (i) failure to pay principal of
or premium, if any, on any Security when it becomes due and payable at stated
maturity, upon acceleration, redemption or otherwise; (ii) failure to pay
interest on any Security when it becomes due and payable and such Default
continues for a period of 30 days; (iii) failure to comply in any material
respect with any of the other agreements or covenants under the Indenture, which
failure is not cured within 60 days after notice is given as specified in the
Indenture; (iv) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect or any Guarantor that is a Significant Subsidiary denies or
disaffirms its obligations under its Guarantee, except, in each case, in
connection with a release of a Guarantee in accordance with the terms of this
Indenture; (v) the nonpayment at maturity or other default (beyond any
applicable grace period) with respect to other Indebtedness of the Company
B-7
108
for borrowed money in an aggregate principal amount of at least $30 million,
which default results in the acceleration of the maturity of such Indebtedness
prior to its stated maturity or occurs at the final maturity thereof; (vi) the
entry of any final judgment or orders against the Company or any of its
Subsidiaries in excess of $30 million individually or in the aggregate (not
covered by insurance) that is not paid, discharged or otherwise stayed (by
appeal or otherwise) within 60 days after the entry of such judgments or orders;
and (vii) certain events of bankruptcy, insolvency or reorganization of the
Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing, the principal amount
hereof may be declared due and payable in the manner and with the effect
provided in the Indenture.
16. Trustee Dealings with the Company.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from and perform services for the Company or
its Affiliates and may otherwise deal with the Company or its Affiliates as if
it were not the Trustee.
17. No Recourse Against Others.
A director, officer, employee, stockholder, incorporator or other
Affiliate of the Company or any Guarantor, as such, shall not have any liability
for any obligations of the Company under the Securities, the Indenture or the
Guarantees or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee (or authenticating
agent) executes the certificate of authentication on the other side of this
Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
20. GOVERNING LAW.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. THE COMPANY AND
EACH GUARANTOR AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK, COUNTY OF
B-8
109
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SECURITY.
21. Successor Corporation.
In the event a successor corporation assumes all the obligations of the
Company under the Securities and the Indenture, pursuant to the terms thereof,
the Company will be released from all such obligations.
B-9
110
NOTATION OF 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 25, 2000 (the "Indenture"), among
▇.▇. Tower Corporation, the Guarantors party thereto and United States Trust
Company of New York, as trustee (the "Trustee"), (i) the due and punctual
payment of the principal of, premium, if any, and interest in full on the
Securities (as defined in the Indenture), when and as the same shall become due
and payable whether at Stated Maturity, by declaration of acceleration or
otherwise, (ii) the due and punctual payment of interest on overdue principal
of, premium, if any, and interest in full on the Securities, to the extent
permitted by law, and (iii) the due and punctual performance of all other
Obligations of the Company and the other Guarantors to the Holders or the
Trustee, including, without limitation, the payment of fees, expenses,
indemnification or other amounts, all in accordance with the terms of the
Securities and this Indenture. In case of the failure of the Company to
punctually to make any such principal or interest payment or the failure of the
Company or any other Guarantor to perform any such other Obligation, each
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at Stated Maturity, by
acceleration or otherwise. The Obligations of the Guarantors to the Holders of
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article X of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Guarantee. The obligations of the
Guarantors will be released only in accordance with the provisions of Article X
of the Indenture.
TOWER AUTOMOTIVE, INC.
By: ______________________________
Name:
Title:
TOWER AUTOMOTIVE PRODUCTS
COMPANY, INC.
By: ______________________________
Name:
Title:
B-10
111
▇. ▇. TOWER CORPORATION (an Indiana
Corporation)
By: ______________________________
Name:
Title:
▇. ▇. TOWER CORPORATION (a Kentucky
Corporation)
By: ______________________________
Name:
Title:
KALAMAZOO STAMPING AND DIE
COMPANY
By: ______________________________
Name:
Title:
TRYLON CORPORATION
By: ______________________________
Name:
Title:
TOWER AUTOMOTIVE DELAWARE, INC.
By: ______________________________
Name:
Title:
B-11
112
ACTIVE TOOL & MANUFACTURING CO., INC.
By: ______________________________
Name:
Title:
ACTIVE PRODUCTS CORPORATION
By: ______________________________
Name:
Title:
TOWER AUTOMOTIVE INTERNATIONAL
FUNDING, INC.
By: ______________________________
Name:
Title:
TOWER AUTOMOTIVE SERVICES AND
TECHNOLOGY, INC.
By: ______________________________
Name:
Title:
TOWER AUTOMOTIVE INTERNATIONAL,
INC.
By: ______________________________
Name:
Title:
TOWER AUTOMOTIVE INTERNATIONAL
HOLDINGS, INC.
By: ______________________________
Name:
Title:
ALGOODS USA, INC.
By: ______________________________
Name:
Title:
B-12
113
ASSIGNMENT FORM
To assign this Security, fill in the form below and have your signature
guaranteed: (I) or (we) assign and transfer this Security to:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Dated:
------------------
Your Name:
---------------------------------------------
(Print your name exactly as it appears on the
face of this Security)
Your Signature:
---------------------------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee*:
-------------------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
B-13
114
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 5.9 of the Indenture, please check the box: |_|
If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 5.9 of the Indenture, state the amount you elect to
have purchased:
$
----------------
Date:
----------------------
Your Signature:
----------------------------------------------
(Sign exactly as your name appears on the face
of this Note)
Tax Identification No.:
--------------------------------------
Signature Guarantee*:
-----------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
B-14
115
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security in (U)__________. The
following increases or decreases in this Global Security have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increases in this Global Security authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or
Exchange this Global Security this Global Security decrease (or increase) Depositary
--------------------------------------------------------------------------------------------------------------------------
B-15