Exhibit 3.C
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation
12 3/8% SENIOR DISCOUNT DEBENTURES DUE 2009
INDENTURE
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Dated as of May [__], 2003
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U.S. Bank National Association,
as Trustee
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TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE .................................................................... 6
SECTION 1.01 DEFINITIONS ................................................................................... 6
SECTION 1.02 OTHER DEFINITIONS ............................................................................. 25
SECTION 1.03 TIA DEFINITIONS ............................................................................... 26
SECTION 1.04 RULES OF CONSTRUCTION ......................................................................... 26
ARTICLE 2. THE DEBENTURES ................................................................................................ 27
SECTION 2.01 FORM AND DATING ............................................................................... 27
SECTION 2.02 EXECUTION AND AUTHENTICATION .................................................................. 28
SECTION 2.03 REGISTRAR AND PAYING AGENT .................................................................... 29
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST ........................................................... 29
SECTION 2.05 HOLDER LISTS .................................................................................. 29
SECTION 2.06 TRANSFER AND EXCHANGE ......................................................................... 30
SECTION 2.07 REPLACEMENT DEBENTURES ........................................................................ 41
SECTION 2.08 OUTSTANDING DEBENTURES ........................................................................ 42
SECTION 2.09 TREASURY DEBENTURES ........................................................................... 42
SECTION 2.10 TEMPORARY DEBENTURES .......................................................................... 42
SECTION 2.11 CANCELLATION .................................................................................. 42
SECTION 2.12 DEFAULTED INTEREST ............................................................................ 43
ARTICLE 3. REDEMPTION AND PREPAYMENT ..................................................................................... 43
SECTION 3.01 NOTICES TO TRUSTEE ............................................................................ 43
SECTION 3.02 SELECTION OF DEBENTURES TO BE REDEEMED ........................................................ 43
SECTION 3.03 NOTICE OF REDEMPTION .......................................................................... 44
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION ................................................................ 44
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE ................................................................... 45
SECTION 3.06 DEBENTURES REDEEMED IN PART ................................................................... 45
SECTION 3.07 OPTIONAL REDEMPTION ........................................................................... 45
SECTION 3.08 MANDATORY REDEMPTION .......................................................................... 46
SECTION 3.09 OFFER TO PURCHASE BY APPLICATION OF NET PROCEEDS OFFER AMOUNT ................................. 46
ARTICLE 4. COVENANTS ..................................................................................................... 48
SECTION 4.01 PAYMENT OF DEBENTURES ......................................................................... 48
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY ............................................................... 48
SECTION 4.03 REPORTS ....................................................................................... 48
SECTION 4.04 COMPLIANCE CERTIFICATE ........................................................................ 49
SECTION 4.05 TAXES ......................................................................................... 49
SECTION 4.06 STAY, EXTENSION AND USURY LAWS ................................................................ 50
SECTION 4.07 RESTRICTED PAYMENTS ........................................................................... 50
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES ....................... 53
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK ...................................... 53
SECTION 4.10 ASSET SALES ..................................................................................... 57
SECTION 4.11 TRANSACTIONS WITH AFFILIATES .................................................................... 58
SECTION 4.12 LIENS ........................................................................................... 60
SECTION 4.13 CONDUCT OF BUSINESS ............................................................................. 60
SECTION 4.14 CORPORATE EXISTENCE ............................................................................. 60
SECTION 4.15 REPURCHASE AT THE OPTION OF HOLDERS ............................................................. 60
SECTION 4.16 SALE LEASEBACK TRANSACTIONS ..................................................................... 61
ARTICLE 5. SUCCESSORS ...................................................................................................... 62
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS ........................................................ 62
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED ............................................................... 62
ARTICLE 6. DEFAULTS AND REMEDIES ........................................................................................... 63
SECTION 6.01 EVENTS OF DEFAULT ............................................................................... 63
SECTION 6.02 ACCELERATION .................................................................................... 64
SECTION 6.03 OTHER REMEDIES .................................................................................. 65
SECTION 6.04 WAIVER OF PAST DEFAULTS ......................................................................... 66
SECTION 6.05 CONTROL BY MAJORITY ............................................................................. 66
SECTION 6.06 LIMITATION ON SUITS ............................................................................. 66
SECTION 6.07 RIGHTS OF HOLDERS OF DEBENTURES TO RECEIVE PAYMENT .............................................. 67
SECTION 6.08 COLLECTION SUIT BY TRUSTEE ...................................................................... 67
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM ................................................................ 67
SECTION 6.10 PRIORITIES ...................................................................................... 68
SECTION 6.11 UNDERTAKING FOR COSTS ........................................................................... 68
ARTICLE 7. TRUSTEE ......................................................................................................... 68
SECTION 7.01 DUTIES OF TRUSTEE ............................................................................... 68
SECTION 7.02 RIGHTS OF TRUSTEE ............................................................................... 69
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE .................................................................... 70
SECTION 7.04 TRUSTEE'S DISCLAIMER ............................................................................ 70
SECTION 7.05 NOTICE OF DEFAULTS .............................................................................. 71
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE DEBENTURES ................................................. 71
SECTION 7.07 COMPENSATION AND INDEMNITY ...................................................................... 71
SECTION 7.08 REPLACEMENT OF TRUSTEE .......................................................................... 72
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC ................................................................ 73
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION ................................................................... 73
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUERS ............................................... 73
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ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE ........................................................................ 73
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE ........................................ 73
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE .................................................................. 74
SECTION 8.03 COVENANT DEFEASANCE ............................................................................. 74
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE ...................................................... 75
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS ... 76
SECTION 8.06 REPAYMENT TO ISSUERS ............................................................................ 76
SECTION 8.07 REINSTATEMENT ................................................................................... 77
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER ................................................................................ 77
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF DEBENTURES ........................................................ 77
SECTION 9.02 WITH CONSENT OF HOLDERS OF DEBENTURES ........................................................... 78
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT ............................................................. 79
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS ............................................................... 79
SECTION 9.05 NOTATION ON OR EXCHANGE OF DEBENTURES ........................................................... 79
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC ................................................................. 80
ARTICLE 10. MISCELLANEOUS .................................................................................................. 80
SECTION 10.01 TRUST INDENTURE ACT CONTROLS .................................................................... 80
SECTION 10.02 NOTICES ......................................................................................... 80
SECTION 10.03 COMMUNICATION BY HOLDERS OF DEBENTURES WITH OTHER HOLDERS OF DEBENTURES ......................... 81
SECTION 10.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT .............................................. 81
SECTION 10.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION ................................................... 82
SECTION 10.06 RULES BY TRUSTEE AND AGENTS ..................................................................... 82
SECTION 10.07 NO PERSONAL LIABILITY OF PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS .............. 82
SECTION 10.08 GOVERNING LAW ................................................................................... 82
SECTION 10.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS ................................................... 83
SECTION 10.10 SUCCESSORS ...................................................................................... 83
SECTION 10.11 SEVERABILITY .................................................................................... 83
SECTION 10.12 COUNTERPART ORIGINALS ........................................................................... 83
SECTION 10.13 TABLE OF CONTENTS, HEADINGS, ETC. ............................................................... 83
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EXHIBITS
Exhibit A FORM OF DEBENTURES
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
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INDENTURE dated as of May [__], 2003 among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental
Holdings, L.P., a Pennsylvania limited partnership ("Holdings"), ▇▇▇▇▇▇▇ ▇▇▇▇▇
Holdings Capital Corporation, a Delaware corporation ("AC Holdings Corp." and,
together with Holdings, the "Issuers"), and U.S. Bank National Association, as
trustee (the "Trustee").
The Issuers and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 12 3/8% Senior
Discount Debentures due 2009 (the "Debentures"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Accreted Value" means for each $1,000 of Debentures, as of any date of
determination prior to August 1, 2003, the sum of (i) the initial offering price
of each Debenture and (ii) that portion of the excess of the principal amount of
each Debenture over such initial offering price which shall have been accreted
thereon through such date, such amount to be so accreted on a daily basis and
compounded semi-annually on each February 1 and August 1 at the rate of 13 3/8%
per annum from the date of issuance of the Debentures through the date of
determination, provided that such amount shall instead be 16 3/8% per annum for
the period from February 1, 2003 through July 31, 2003.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
Holdings or that is assumed by Holdings or any of its Restricted Subsidiaries in
connection with the acquisition of assets from such Person, in each case
excluding any Indebtedness incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted Subsidiary
of Holdings or such acquisition.
"Affiliate" means a Person who directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, Holdings. The term "control" means the possession directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person whether through the ownership of voting securities, by contract or
otherwise. Notwithstanding the foregoing, no Person (other than Holdings or any
Subsidiary of Holdings) in whom a Securitization Entity makes an Investment in
connection with a Qualified Securitization Transaction shall be deemed to be an
Affiliate of Holdings or any of its Subsidiaries solely by reason of such
Investment.
"Agent" means any Registrar, Paying Agent or co-registrar.
"all or substantially all" shall have the meaning given such phrase in
the Revised Model Business Corporation Act.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Debenture, the rules and procedures
of the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Acquisition" means (a) an Investment by Holdings or any
Restricted Subsidiary of Holdings in any other Person if, as a result of such
Investment, such Person shall become a Restricted Subsidiary of Holdings, or
shall be merged with or into Holdings or any Restricted Subsidiary of Holdings,
or (b) the acquisition by Holdings or any Restricted Subsidiary of Holdings of
all or substantially all of the assets of any other Person or any division or
line of business of any other Person.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease, assignment or other transfer for value (other than operating
leases entered into in the ordinary course of business (other than Sale and
Leaseback Transactions)) by Holdings or any of its Restricted Subsidiaries to
any Person other than Holdings or a Restricted Subsidiary of Holdings of (a) any
Capital Stock of any Restricted Subsidiary of Holdings or (b) any other property
or assets of Holdings or any Restricted Subsidiary of Holdings other than in the
ordinary course of business; provided, however, that Asset Sales shall not
include (i) a transaction or series of related transactions for which Holdings
or its Restricted Subsidiaries receive aggregate consideration of less than $1.0
million, (ii) the sale, lease, conveyance, disposition or other transfer of all
substantially all of the assets of Holdings as permitted under Section 5.01 or
any disposition that constitutes a Change of Control, (iii) the sale or
discount, in each case without recourse, of accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or
collection thereof, (iv) the factoring of accounts receivable arising in the
ordinary course of business pursuant to arrangements customary in the industry,
(v) the licensing of intellectual property, (vi) disposals or replacements of
used or obsolete cranes and equipment in the ordinary course of business, (vii)
the sale, lease conveyance, disposition or other transfer by Holdings or any
Restricted Subsidiary of assets or property to one or more Restricted
Subsidiaries in connection with Investments permitted by Section 4.07 and (viii)
sales of accounts receivable, equipment and related assets (including contract
rights) of the type specified in the definition of "Qualified Securitization
Transaction" to a Securitization Entity for the fair market value thereof,
including cash in an amount at least equal to 75% of the fair market value
thereof. For the purposes of clause (viii), Purchase Money Notes shall be deemed
to be cash.
"Attributable Debt" means, in respect of a sale and leaseback
transaction, at the time of determination, the present value (discounted at the
rate of interest implicit in such transaction, determined in accordance with
GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Business Day" means any day other than a Legal Holiday.
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"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means: (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's; (iii) commercial paper maturity no more
than one year from the date of creation thereof and at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances (or, with respect to foreign
banks, similar instruments) maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia, having at
the date of acquisition thereof combined capital and surplus of not less than
$500.0 million; (v) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iv)
above; and (vi) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (i) through (v)
above.
"Certificated Debenture" means a certificated Debenture registered in
the name of the Holder thereof and issued in accordance with Section 2.06
hereof, in the form of Exhibit A-1 hereto except that such Debenture shall not
bear the Global Debenture Legend and shall not have the "Schedule of Exchanges
of Interests in the Global Debenture" attached thereto.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of Holdings and its Subsidiaries (determined on a consolidated basis)
to any Person or group of related Persons, as defined in Section 13(d) of the
Exchange Act (a "Group"), together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of this Indenture) other than a
Principal or a Related Party of a Principal; (ii) the approval by the holders of
Capital Stock of one or more of the Issuers or the General Partner of any plan
or proposal for the liquidation or dissolution of the Issuers or the General
Partner (whether or not otherwise in compliance with the provisions of this
Indenture); (iii) any Person or Group (other than one of the Principals or their
respective Related Parties) shall become the owner, directly or indirectly,
beneficially or of record, of more than 50% of either the aggregate Voting Stock
or Capital Stock of one of the Issuers, the General Partner or
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any successor to all or substantially all of their respective assets; (iv) the
occurrence of any transaction, the result of which is that the General Partner
is no longer the sole general partner of Holdings; (v) the first day on which
Holdings fails to own 100% of the issued and outstanding Equity Interests of AC
Holdings Corp.; and (vi) (A) for so long as Holdings is a partnership (orother
pass-through entity for federal income tax purposes) with a limited liability
company serving as the General Partner, the first day on which a majority of the
members of the Management Committee of the General Partner are not Continuing
Members and (B) at all such other times, the first day on which a majority of
the members of Holdings Management Committee are not Continuing Members.
Notwithstanding the foregoing, any reorganization of the Issuers pursuant to the
last sentence of Section 5.01 shall not constitute a Change of Control under
this Indenture.
"Clearstream" means Clearstream Banking, SA.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P., a Pennsylvania limited
partnership, and its successors.
"Consent Fee" means that certain payment to holders of the Old Notes
who validly delivered their consent to the amendments to the indenture governing
such notes in connection with the Issuers' Exchange Offer and Consent
Solicitation pursuant to that certain Offering Memorandum and Consent
Solicitation Statement dated March 14, 2003, payable in three equal installments
on (1) the date hereof, (2) September 1, 2003 and (3) February 1, 2004.
"Consolidated EBITDA" means, with respect to any Person for any period,
the sum (without duplication) of such Person's (i) Consolidated Net Income (less
any gains on Used Crane Sales) and (ii) to the extent Consolidated Net Income
has been reduced thereby, (A) all income taxes and foreign withholding taxes of
such Person and its Restricted Subsidiaries paid or accrued in accordance with
GAAP for such period and any provision for taxes paid or accrued based on income
or profits or the Tax Amount of such Person and its Subsidiaries for such
period, to the extent that such provision for taxes or Tax Amount was included
in computing such Consolidated Net Income, (B) Consolidated Interest Expense,
(C) Consolidated Noncash Charges, (D) all one-time cash compensation payments
made in connection with the Transactions, and (E) any payments related to
addressing Holdings' or any of its Restricted Subsidiaries "Year 2000"
information systems issues or to re-engineering efforts that must be expensed in
accordance with EITF 97-13.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the most recent
four full fiscal quarters for which internal financial statements are available
(the "Four-Quarter Period") ending on or prior to the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio (the "Transaction Date") to Consolidated Fixed Charges of such Person for
the Four-Quarter Period. In addition to and without limitation of the foregoing,
for purposes of this definition, Consolidated EBITDA and Consolidated Fixed
Charges shall be calculated after giving effect on a pro forma basis for the
period of such calculation to (i) the incurrence of any Indebtedness or the
issuance of any preferred stock of such Person or any of its Restricted
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Subsidiaries (and the application of the proceeds thereof) and any repayment of
other Indebtedness or redemption of other preferred stock occurring during the
Four-Quarter Period or at any time subsequent to the last day of the Four-
Quarter Period and on or prior to the Transaction Date, as if such incurrence,
repayment, issuance or redemption, as the case may be (and the application of
the proceeds thereof), occurred on the first day of the Four-Quarter Period and
(ii) any Asset Sales or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a result
of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness and also including
any Consolidated EBITDA (including any Pro Forma Cost Savings) associated with
such Asset Acquisition) occurring during the Four-Quarter Period or at any time
subsequent to the last day of the Four-Quarter Period and on or prior to the
Transaction Date, as if such Asset Sale or Asset Acquisition (including the
incurrence, assumption or liability for any such Indebtedness or Acquired
Indebtedness) occurred on the first day of the Four-Quarter Period. If such
Person or any of its Restricted Subsidiaries directly or indirectly Guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or any Restricted
Subsidiary of such Person had directly incurred or otherwise assumed such
guaranteed Indebtedness. Furthermore, in calculating Consolidated Fixed Charges
for purposes of determining the denominator (but not the numerator) of this
Consolidated Fixed Charge Coverage Ratio, (1) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four-Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating rate, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (i) Consolidated Interest Expense
(excluding amortization or write off of debt issuance costs incurred on or prior
to July 22, 1998) plus (ii) the product of (a) all cash dividend payments or
other distributions (and non-cash dividend payments in the case of a Person that
is a Subsidiary) on any series of preferred equity of such Person, times (b) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of
such Person (or, in the case of a Person that is a partnership or a limited
liability company, the combined federal, state and local income tax rate that
was or would have been utilized to calculate the Tax Amount of such Person),
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP, provided that with respect to any series of preferred stock that was
not paid cash dividends during such period but that is eligible to be paid cash
dividends during any period prior to the maturity date of the Debentures, cash
dividends shall be deemed to have been paid with respect to such series of
preferred stock during such period for purposes of clause (ii) of this
definition.
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"Consolidated Interest Expense" means, with respect to any Person for
any period, the sum of, without duplication, (i) the aggregate of all cash and
non-cash interest expense with respect to all outstanding Indebtedness
(including amortization or write-off of debt issuance costs) of such Person and
its Restricted Subsidiaries, including the net costs associated with Interest
Swap Obligations, for such period determined on a consolidated basis in
conformity with GAAP, (ii) the consolidated interest expense incurred by such
Person and its Restricted Subsidiaries that was capitalized during such period,
and (iii) the interest component of Capitalized Lease Obligations and imputed
interest with respect to Attributable Debt paid, accrued and/or scheduled to be
paid or accrued by such Person and its Restricted Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any
period, (i) the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP, provided that there shall be excluded therefrom (a) gains (or losses)
from Asset Sales (without regard to the $1.0 million limitation set forth in the
definition thereof) or abandonments or reserves relating thereto and the related
tax effects according to GAAP, (b) gains (or losses) due solely to fluctuations
in currency values and the related tax effects according to GAAP, (c) items
classified as extraordinary, unusual or nonrecurring gains (or losses)
(including, without limitation, severance, relocation, other restructuring costs
and multiemployer pension plan insured liability payments), and the related tax
effects according to GAAP and any related Tax Amounts with respect thereto, (d)
the net income (or loss) of any Person acquired in a pooling of interests
transaction accrued prior to the date it becomes a Restricted Subsidiary of
Holdings or is merged or consolidated with Holdings or any Restricted Subsidiary
of Holdings, (e) the net income of any Restricted Subsidiary of Holdings to the
extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of Holdings of that income is restricted by operation of
its charter (or the equivalent thereof), operation of law or any judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, (f) the net income of any Person,
other than a Restricted Subsidiary of Holdings, except to the extent of cash
dividends or distributions paid to Holdings or a Restricted Subsidiary of
Holdings by such Person, (g) only for purposes of clause (c)(i) of the first
paragraph of Section 4.07, any amounts included pursuant to clause (c)(iii) of
the first paragraph of such Section, (h) the net income (or loss) from the
operations of any business that has been divested by distribution, sale,
spin-off or abandonment, and (i) one time non-cash compensation charges,
including any arising from existing stock options resulting from any merger or
recapitalization transaction, less (ii) any cash distribution paid or accrued
related to payment of the Tax Amount for such period.
"Consolidated Noncash Charges" means, with respect to any Person for
any period, the aggregate depreciation, amortization and any other non-cash
expenses of such Person and its Restricted Subsidiaries reducing Consolidated
Net Income of such Person for such period, determined on a consolidate basis in
accordance with GAAP excluding any such non-cash charge constituting an
extraordinary item or loss or any such non-cash charge which requires an accrual
of or a reserve for cash charges for any future period.
"Continuing Members" means, as of any date of determination, any member
of the Management Committee of Holdings who (i) was a member of such Management
Committee on July 22, 1998 or (ii) was nominated for election or elected to such
Management Committee by
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any of the Principals or with the approval of a majority of the Continuing
Members who were members of such Management Committee at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to Holdings.
"Credit Facilities" means one or more debt facilities (including,
without limitation, the Senior Credit Facility, the Second Priority Credit
Facility and the Third Priority Note Purchase Agreement) or commercial paper
facilities with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) and/or letters of credit.
"Currency Agreements" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
Holdings or any Restricted Subsidiary of Holdings against fluctuations in
currency values.
"Custodian" means the Trustee, as custodian with respect to the
Debentures in global form, or any successor entity thereto.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Debentures issuable or issued
in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Debentures, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Noncash Consideration" means any non-cash consideration
(other than non-cash consideration that would constitute a Restricted
Investment) received by Holdings or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate executed by the principal
executive officer and the principal financial officer of Holdings or such
Restricted Subsidiary. Such Officers' Certificate shall state the basis of such
valuation, which shall be a report of a nationally recognized investment banking
firm with respect to the receipt in one or a series of related transactions of
Designated Noncash Consideration with a fair market value in excess of $10.0
million.
"Designated Preferred Stock" means preferred stock that is so
designated as Designated Preferred Stock, pursuant to an Officers' Certificate
executed by the principal executive officer and the principal financial officer
of Holdings, on the issuance date thereof, the cash proceeds of which are
excluded from the calculation set forth in clause (iv) of the first paragraph of
Section 4.07.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof, in
12
whole or in part, on or prior to the date that is 91 days after the date on
which the Debentures mature; provided, however, that any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have the
right to require Holdings to repurchase such Capital Stock upon the occurrence
of a Change of Control or an Asset Sale shall not constitute Disqualified Stock
if the terms of such Capital Stock provide that Holdings may not repurchase or
redeem any such Capital Stock pursuant to such provisions unless such repurchase
or redemption complies with Section 4.07.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Dividends" means, for so long as Holdings or any applicable Subsidiary
is a partnership (or other pass-through entity for federal income tax purposes),
dividends or distributions.
"EITF" means the Emerging Issues Task Force of the Financial Accounting
Standards Board.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any offering of Qualified Capital Stock of
Holdings.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of Holdings and its
Restricted Subsidiaries (other than Indebtedness under the Senior Credit
Facilities) in existence on July 22, 1998, until such amounts are permanently
repaid.
"Exchange Offer and Consent Solicitation" means the Exchange Offer and
Consent Solicitation pertaining to the Old Notes and the Old Debentures which
was consummated on [__], 2003.
"Former Owners" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental
of Texas, Inc., ▇▇▇▇▇▇▇ Iron and Metal Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental of Georgia,
Inc., ACR Acquisition, Inc. and ▇▇▇ ▇. ▇▇▇▇▇▇▇.
"Four-Quarter Period" has the meaning specified in the definition of
Consolidated Fixed Charge Coverage Ratio.
"Fourth Lien" means the Lien of the holders of New Notes securing the
obligations of the issuers of the New Notes under the security documents
executed in connection with the New Note Indenture.
13
"Fourth-Lien Obligations" means the obligations owing to the holders of
the Notes under the Fourth-Lien Documents.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on December 31, 1997.
"General Partner" means ACR Management, L.L.C., a Delaware limited
liability company and the general partner of Holdings.
"Global Debentures" means, individually and collectively, each of the
Restricted Global Debentures and the Unrestricted Global Debentures, in the form
of Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(iv) or
2.06(d)(ii) hereof.
"Global Debenture Legend" means the legend set forth in Section
2.06(f)(ii), which is required to be placed on all Global Debentures issued
under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements (including Interest Swap
Obligations) and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates.
"Holder" means a Person in whose name a Debenture is registered.
"Holdings" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P., a Delaware
limited partnership, and its successors.
"IAI Global Debenture" means the global Debenture in the form of
Exhibit A-1 hereto bearing the Global Debenture Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Debentures sold to Institutional Accredited
Investors.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance
14
deferred and unpaid of the purchase price of any property or representing any
Hedging Obligations, except any such balance that constitutes an accrued expense
or trade payable, if and to the extent any of the foregoing (other than letters
of credit and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, as well as all
Indebtedness of others secured by a Lien on any asset of such Person (whether or
not such Indebtedness is assumed by such Person) and, to the extent not
otherwise included, the Guarantee by such Person of any indebtedness of any
other Person. The amount of any Indebtedness outstanding as of any date shall be
(i) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount, and (ii) the principal amount thereof, together with
any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness. For purposes of calculating the amount of Indebtedness of a
Securitization Entity outstanding as of any date, the face or notional amount of
any interest in receivables or equipment that is outstanding as of such date
shall be deemed to be Indebtedness but any such interests held by Affiliates of
such Securitization Entity shall be excluded for purposes of such calculation.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Debenture through a Participant.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Interest Swap Obligations" means the obligations of any Person,
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Persons calculated by applying a fixed or a floating rate of interest on the
same notional amount.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If Holdings or any Subsidiary of Holdings sells or otherwise disposes of any
Equity Interests of any direct or indirect Subsidiary of Holdings such that,
after giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of Holdings, Holdings shall be deemed to have made an Investment on
the date of any such sale or disposition equal to the fair market value of the
Equity Interests of such Subsidiary not sold or disposed of in an amount
determined as provided in the final paragraph of Section 4.07.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal corporate
trust office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain
15
closed. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue on such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Management Committee" means (i) for so long as Holdings is a
partnership (or other pass through entity for federal income tax purposes), the
management committee (or the equivalent thereof for any other pass through
entity for federal income tax purposes) of the General Partner and (ii)
otherwise, the Board of Directors of Holdings.
"Marketable Securities" means publicly traded debt or equity securities
that are listed for trading on a national securities exchange and that were
issued by a corporation whose debt securities are rated at least "AAA- " from
S&P or "Aaa3" from Moody's.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Proceeds" means the aggregate cash proceeds received by Holdings
or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes or Tax Distributions paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"New Notes" means the 9 3/8% Senior Secured Notes due 2008 of ▇▇▇▇▇▇▇
▇▇▇▇▇ Rental, L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation.
"New Note Indenture" means that certain Indenture dated May [__], 2003,
by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation and
U.S. Bank National Association, as trustee, pursuant to which the New Notes were
issued.
"Non-Recourse Debt" means Indebtedness (i) as to which neither Holdings
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of Holdings
or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated
16
maturity; and (iii) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of Holdings or any of its
Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Obligations" means any principal, interest (including interest that,
but for the filing of a petition in bankruptcy with respect to the Issuers,
would accrue on such obligations), penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Management Committee or Board of Directors, as applicable, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Issuers by two Officers of the Issuers, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Issuers, that meets the requirements of
Sections 11.04 and 11.05 hereof.
"Old Debenture Indenture" means the indenture dated as of July 22, 1998
pursuant to which the Old Debentures were issued, as amended (including any
amendment and restatement thereof), modified, renewed, refunded, replaced,
refinanced or restructured from time to time.
"Old Debentures" means the 13 3/8% Senior Discount Debentures due 2009
of the Issuers issued in connection with the Transactions.
"Old Notes" means the 10 3/8% Senior Notes due 2008 of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Rental, L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation.
"Old Note Indenture" means the indenture dated as of July 22, 1998
pursuant to which the Old Notes were issued, as amended (including any amendment
and restatement thereof), modified, renewed, refunded, replaced, refinanced or
restructured from time to time.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
11.04 and 11.05 hereof. The counsel may be an employee of or counsel to the
Issuers, any Subsidiary of Holdings or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Permitted Business" means any business that derives a majority of its
revenues from the sale, rental or lease of cranes or other lifting equipment or
activities that are reasonably similar, ancillary or related to, or a reasonable
extension, development or expansion of, the businesses in which Holdings and its
Restricted Subsidiaries are engaged on July 22, 1998 or on the date of execution
of this Indenture.
17
"Permitted Investments" means (i) Investments by Holdings or any
Restricted Subsidiary of Holdings in any Restricted Subsidiary of Holdings
(whether existing on July 22, 1998 or created thereafter) or in any other Person
(including by means of any transfer of cash or other property) if as a result of
such Investment such Person shall become a Restricted Subsidiary of Holdings and
Investments in Holdings by any Restricted Subsidiary of Holdings, (ii) cash and
Cash Equivalents, (iii) Investments existing on July 22, 1998, (iv) loans and
advances to employees and officers of Holdings and its Restricted Subsidiaries
in the ordinary course of business, (v) accounts receivable created or acquired
in the ordinary course of business, (vi) Interest Swap Obligations entered into
in the ordinary course of Holdings businesses and otherwise in compliance with
this Indenture, (vii) Investments in Unrestricted Subsidiaries an amount at any
one time outstanding not to exceed $10.0 million, (viii) Investments in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers, (ix) guarantees by Holdings of Indebtedness
otherwise permitted to be incurred by Restricted Subsidiaries of Holdings under
this Indenture, (x) Investments the payment for which consists exclusively of
Qualified Capital Stock of Holdings, (xi) additional Investments having an
aggregate fair market value, taken together with all other Investments made
pursuant to this clause (xi) that are at that time outstanding, not to exceed 5%
of Total Assets at the time of such Investment (with the fair market value of
each Investment being measured at the time made and without giving effect to
subsequent changes in value), (xii) Investments received by Holdings or its
Restricted Subsidiaries as consideration for asset sales, including Asset Sales;
provided that in the case of an Asset Sale, such Asset Sale is effected in
compliance with Section 4.10 and (xiii) any Investment by Holdings or a
Subsidiary of Holdings in a Securitization Entity or any Investment by a
Securitization Entity in any other Person in connection with a Qualified
Securitization Transaction; provided that any Investment in a Securitization
Entity is in the form of a Purchase Money Note or an equity interest.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which Holdings or its Restricted Subsidiaries shall have
set aside on its books such reserves as may be required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit
issued in the ordinary course of business consistent with past practice in
connection therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money);
18
(iv) judgment Liens not giving rise to an Event of Default;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of Holdings or any of
its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation;
(vii) purchase money Liens to finance property or assets of Holdings
or any Restricted Subsidiary of Holdings acquired in the ordinary course of
business; provided, however, that (A) the related purchase money Indebtedness
shall not exceed the cost of such property or assets and shall not be secured by
any property or assets of Holdings or any Restricted Subsidiary of Holdings
other than the property and assets so acquired and (B) the Lien securing such
Indebtedness shall be created with 90 days of such acquisition;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment, or storage of such inventory or other goods;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of Holdings or
any of its Restricted Subsidiaries, including rights of offset and set-off;
(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(xii) Liens securing Acquired Indebtedness incurred in reliance on the
second paragraph of Section 4.09;
(xiii) Liens incurred in the ordinary course of business of Holdings or
any Restricted Subsidiary with respect to obligations that do not in the
aggregate exceed $15.0 million at any one time outstanding;
(xiv) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of Holdings and its Restricted
Subsidiaries;
(xv) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(xvi) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customer duties in connection with the
importation of goods;
19
(xvii) Liens on assets of Unrestricted Subsidiaries that secure Non-
Recourse Debt of Unrestricted Subsidiaries;
(xviii) Liens existing on July 22, 1998, together with any Liens
securing Indebtedness incurred in reliance on clause (xiii) of the definition of
Permitted Indebtedness in order to refinance the Indebtedness secured by Liens
existing on July 22, 1998; provided that the Liens securing the refinancing
Indebtedness shall not extend to property other than that pledged under the
Liens securing the Indebtedness being refinanced;
(xix) Liens securing Indebtedness and other Obligations under Credit
Facilities that will be permitted by the terms of this Indenture to be incurred;
(xx) Liens securing Attributable Debt incurred in connection with
any sale and leaseback transaction permitted to be consummated pursuant to
Section 4.16;
(xxi) Liens securing Indebtedness permitted to be incurred pursuant
to (A) the Credit Facilities (whether such Indebtedness is incurred pursuant to
the Consolidated Fixed Charge Coverage Ratio set forth in the first paragraph of
Section 4.09 or clause (ii) of Section 4.09, (B) clause (ix) of Section 4.09 and
(C) clause (xiv) of Section 4.09;
(xxii) Liens on assets transferred to a Securitization Entity or on
assets of a Securitization Entity, in either case incurred in connection with a
Qualified Securitization Transaction; and
(xxiii) Liens securing Indebtedness and other Obligations under the New
Notes.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Principals" means ▇▇▇▇ Capital, Inc. and any Affiliate of ▇▇▇▇
Capital, Inc.
"Private Placement Legend" means the legend set forth in Section
2.06(f)(i) to be placed on all Debentures issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"Productive Assets" means assets (including Capital Stock) that are
used or usable by Holdings and its Restricted Subsidiaries in Permitted
Businesses; provided that for any Capital Stock to qualify as Productive Assets,
it must, after giving pro forma effect to the transaction in which it was
acquired, be Capital Stock of a Restricted Subsidiary.
"Pro Forma Cost Savings" means, with respect to any period, the
reduction in costs that occurred during the Four-Quarter Period or after the end
of the Four-Quarter Period and on or prior to the Transaction Date that were (i)
directly attributable to an Asset Acquisition and calculated on a basis that is
consistent with Article 11 of Regulation S-X under the Securities Act as in
effect on July 22, 1998 or (ii) implemented by the business that was the subject
of any such Asset Acquisition within six months of the date of the Asset
Acquisition and that are supportable
20
and quantifiable by the underlying accounting records of such business, as if,
in the case of each of clause (i) and (ii), all such reductions in costs had
been effected as of the beginning of such period.
"Purchase Money Note" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from Holdings or
any Restricted Subsidiary of Holdings in connection with a Qualified
Securitization Transaction, which note shall be repaid from cash available to
the Securitization Entity, other than (i) amounts required to be established as
reserves pursuant to agreements, (ii) amounts paid to investors in respect of
interest, principal and other amounts owing to such investors and (iii) amounts
paid in connection with the purchase of newly generated receivables or newly
acquired equipment.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Stock.
"Qualified Securitization Transaction" means any transaction or series
of transactions pursuant to which Holdings, the Company or any of their
Restricted Subsidiaries may sell, convey or otherwise transfer to (a) a
Securitization Entity (in the case of a transfer by Holdings or any of its
Restricted Subsidiaries) and (b) any other Person (in case of a transfer by a
Securitization Entity), or may grant a security interest in, any accounts
receivable or equipment (whether now existing or arising or acquired in the
future) of Holdings or any of its Restricted Subsidiaries, and any assets
related thereto including, without limitation, all collateral securing such
accounts receivable and equipment, all contracts and contract rights and all
Guarantees or other obligations in respect to such accounts receivable and
equipment, proceeds of such accounts receivable and equipment and other assets
(including contract rights) which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable and equipment, all of
the foregoing for the purpose of providing working capital financing on terms
that are more favorable to Holdings and its Restricted Subsidiary than would
otherwise be available at that time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Debenture" a Regulation S Temporary Global
Debenture or Regulation S Permanent Global Debenture, as appropriate.
"Regulation S Permanent Global Debenture" means a permanent global
Debenture in the form of Exhibit A-1 hereto bearing the Global Debenture Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Debenture upon expiration of the Distribution Compliance
Period.
"Regulation S Temporary Global Debenture" means a temporary global
Debenture in the form of Exhibit A-2 hereto bearing the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Debentures initially sold in reliance on Rule 903 of Regulation S.
21
"Related Party" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Certificated Debenture" means a Certificated Debenture
bearing the Private Placement Legend.
"Restricted Global Debenture" means a Global Debenture bearing the
Private Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇" means a global note in the form of Exhibit
A-1 hereto bearing the Global Debenture Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Debentures sold in reliance on Rule 144A.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"S&P" means Standard & Poor's.
"Sale and Leaseback Transaction" means any sale and leaseback
transaction by Holdings or any of its Restricted Subsidiaries with respect to
assets with an aggregate fair market value (as determined in good faith by the
Management Committee) in excess of $1.0 million.
"SEC" means the Securities and Exchange Commission.
22
"Second Priority Credit Facility" means the Credit Agreement, dated as
of July 22, 1998, as amended, by and among Rental, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners
L.P., and the Agent, Collateral Agent and the financial institutions party
thereto, providing for revolving credit borrowings and term loan borrowings,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended
(including any amendment and restatement thereof), modified, renewed, refunded,
replaced, refinanced or restructured from time to time and whether with the same
or any other agent, lender or group of lenders, including to increase the amount
of available borrowings thereunder.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Entity" means a Wholly Owned Subsidiary of Holdings (or
another Person in which Holdings or any Subsidiary of Holdings makes an
Investment and to which Holdings or any Subsidiary of Holdings transfers
accounts receivable or equipment and related assets) that engages in no
activities other than in connection with the financing of accounts receivable or
equipment and that is designated by the Management Committee of Holdings (as
provided below) as a Securitization Entity (a) no portion of the Indebtedness or
any other Obligations (contingent or otherwise) of which (i) is guaranteed by
Holdings or any Restricted Subsidiary of Holdings (excluding guarantees of
Obligations (other than the principal of, and interest on, Indebtedness))
pursuant to Standard Securitization Undertakings, (ii) is recourse to or
obligates Holdings or any Restricted Subsidiary of Holdings in any way other
than pursuant to Standard Securitization Undertakings or (iii) subjects any
property or asset of Holdings or any Restricted Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to Standard Securitization Undertakings, (b) with which
neither Holdings nor any Restricted Subsidiary of Holdings has any material
contract, agreement, arrangement or understanding other than on terms no less
favorable to Holdings or such Restricted Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of Holdings, other
than fees payable in the ordinary course of business in connection with
servicing receivables of such entity, and (c) to which neither Holdings nor any
Restricted Subsidiary of Holdings has any obligation to maintain or preserve
such entity's financial condition or cause such entity to achieve certain levels
of operating results. Any such designation by the Management Committee of
Holdings shall be evidenced to each of the Trustees by filing with the Trustees
a certified copy of the resolution of the Management Committee of Holdings
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions.
"Senior Credit Facility" means the Second Amended and Restated Credit
Agreement, dated as of March 31, 2002, by and among Holdings, ▇▇▇▇▇▇▇ Sachs
Credit Partners L.P., and the Agent, Collateral Agent and the financial
institutions party thereto, providing for revolving credit borrowings and term
loan borrowings, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended (including any amendment and restatement thereof), modified, renewed,
refunded, replaced, refinanced or restructured from time to time and whether
with the same or any other agent, lender or group of lenders, including to
increase the amount of available borrowings thereunder.
23
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on July 22,
1998.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by Holdings or any Subsidiary
of Holdings that are reasonably customary in an accounts receivable or equipment
transactions.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the shares of
Capital Stock is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof), but shall not
include any Unrestricted Subsidiary.
"Tax Amount" means the amount of distributions, whether paid or
accrued, necessary to permit Holdings' partners to pay federal and state income
tax liabilities arising from income of Holdings and its Restricted Subsidiaries
and taxable to such partners, including the tax distributions contemplated by
Holdings' and the Company's respective partnership agreements attributable to
such partners solely as a result of Holdings (and any intermediate entity
through which any such partner owns its interest in Holdings) being a
partnership or similar pass-through entity for federal income tax purposes.
"Tax Distributions" means a distribution in respect of taxes to the
partners of Holdings pursuant to clause (9) of the second paragraph of Section
4.07.
"Third Priority Note Purchase Agreement" means that certain Note
Purchase Agreement dated as of June 4, 2002 by and between Rental and ▇▇▇▇/ACR,
L.L.C, as amended (including any amendment and restatement thereof), modified,
renewed, refunded, replaced, refinanced or restructured from time to time and
whether with the same or any other agent, lender or group of lenders, including
to increase the amount of available borrowings thereunder.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb) as in effect on the date on which this Indenture is qualified under the
TIA.
"Total Assets" means the total consolidated assets of Holdings and its
Restricted Subsidiaries, as set forth on Holdings' most recent consolidated
balance sheet.
"Transactions" means the transactions contemplated by that certain
Recapitalization Agreement dated June 1, 1998, and completed in connection with
the issuance of the Old Notes
24
and Old Debentures and the refinancing of certain indebtedness of the Company
and AC Holdings Corp. in 1998.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Certificated Debenture" means one or more Certificated
Debentures that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Debenture" means a permanent global Debenture in
the form of Exhibit A-1 attached hereto that bears the Global Debenture Legend
and that has the "Schedule of Exchanges of Interests in the Global Debenture"
attached thereto, and that is deposited with or on behalf of and registered in
the name of the Depositary, representing a series of Debentures that do not bear
the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary (other than ▇▇▇▇▇▇▇
▇▇▇▇▇ Holdings Capital Corporation) that is designated by the Management
Committee as an Unrestricted Subsidiary pursuant to a resolution of the
Management Committee, but only to the extent that such Subsidiary: (a) has no
Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with Holdings or any Restricted
Subsidiary of Holdings unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to Holdings or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of Holdings; (c) is a Person with respect to which
neither Holdings nor any of its Restricted Subsidiaries has any direct or
indirect obligation (x) to subscribe for additional Equity Interests or (y) to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results; (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
Holdings or any of its Restricted Subsidiaries; and (e) has at least one
director on its board of directors that is not a director or executive officer
of Holdings or any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of Holdings or any of its
Restricted Subsidiaries. Any such designation by the Management Committee shall
be evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Management Committee giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted by Section 4.07. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Holdings
as of such date (and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.09, Holdings shall be in default of such covenant).
The Management Committee may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that such designation shall be deemed to
be an Incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (i) such Indebtedness is permitted under Section
4.09, calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period and (ii) no Default or Event of
Default would be in existence following such designation.
25
"Used Crane Sales" means sales of used cranes, used parts and other
used equipment by Holdings or any of its Restricted Subsidiaries pursuant to
Holdings' or the Company's fleet management program in the ordinary course of
business consistent with past practices on July 22, 1998.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the
Management Committee or Board of Directors, as applicable, of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries
of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02 OTHER DEFINITIONS.
Defined in
Term Section
"Acceleration Notice" ............................... 6.02
"Affiliate Transaction" ............................. 4.11
"Authentication Order" .............................. 2.02
"Bankruptcy Law" .................................... 4.01
"Change of Control Offer" ........................... 4.15
"Change of Control Payment" ......................... 4.15
"Change of Control Payment Date" .................... 4.15
"Covenant Defeasance" ............................... 8.03
"DTC" ............................................... 2.03
"Event of Default" .................................. 6.01
"incur" ............................................. 4.09
"Legal Defeasance" .................................. 8.02
"Net Proceeds Offer" ................................ 4.10
"Net Proceeds Offer Amount" ......................... 4.10
"Net Proceeds Offer Payment Date" ................... 4.10
"Net Proceeds Offer Trigger Date" ................... 4.10
26
Defined in
Term Section
"Offer Period" ...................................... 3.09
"Paying Agent" ...................................... 2.03
"Permitted Indebtedness" ............................ 4.09
"Purchase Date" ..................................... 3.09
"Refinancing Indebtedness" .......................... 4.09
"Refunding Capital Stock" ........................... 4.07
"Registrar" ......................................... 2.03
"Required Premiums" ................................. 4.09
"Restricted Payments" ............................... 4.07
"Retired Capital Stock" ............................. 4.07
SECTION 1.03 TIA DEFINITIONS
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Debentures;
"indenture security Holder" means a Holder of a Debenture;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Debentures means the Issuers and any successor obligor
upon the Debentures.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
27
(6) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement of successor sections
or rules adopted by the SEC from time to time.
ARTICLE 2.
THE DEBENTURES
SECTION 2.01 Form and Dating.
(a) General. The Debentures and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Debentures may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Debenture shall be dated the date of its
authentication. The Debentures shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Debentures shall constitute,
and are hereby expressly made, a part of this Indenture and the Issuers and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Debenture conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Debentures. Debentures issued in global form shall be
substantially in the form of Exhibits A-1 or A-2 attached hereto (including the
Global Debenture Legend thereon and the "Schedule of Exchanges of Interests in
the Global Debenture" attached thereto). Debentures issued in definitive form
shall be substantially in the form of Exhibit A-1 attached hereto (but without
the Global Debenture Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Debenture" attached thereto). Each Global Debenture
shall represent such of the outstanding Debentures as shall be specified therein
and each shall provide that it shall represent the aggregate principal amount of
outstanding Debentures from time to time endorsed thereon and that the aggregate
principal amount of outstanding Debentures represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Debenture to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Debentures
represented thereby shall be made by the Trustee or the Debenture Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Debentures. Debentures offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Debenture, which shall be deposited on behalf of the
purchasers of the Debentures represented thereby with the Trustee, at its New
York office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Clearstream, duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided. The
Distribution Compliance Period shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Clearstream certifying that they have
received certification of non-United States beneficial ownership of 100% of the
aggregate
28
principal amount of the Regulation S Temporary Global Debenture (except to the
extent of any beneficial owners thereof who acquired an interest therein during
the Distribution Compliance Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a beneficial
ownership interest in a Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or an IAI Global Debenture
bearing a Private Placement Legend, all as contemplated by Section 2.06(a)(ii)
hereof), and (ii) an Officers' Certificate from the Issuers. Following the
termination of the Distribution Compliance Period, beneficial interests in the
Regulation S Temporary Global Debenture shall be exchanged for beneficial
interests in Regulation S Permanent Global Debentures pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Debentures, the Trustee shall cancel the Regulation S Temporary Global
Debenture. The aggregate principal amount of the Regulation S Temporary Global
Debenture and the Regulation S Permanent Global Debentures may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Temporary Global Debenture
and the Regulation S Permanent Global Debentures that are held by Participants
through Euroclear or Clearstream.
SECTION 2.02 Execution and Authentication.
Two Officers shall sign the Debentures for the Issuers by manual or
facsimile signature. The Issuers' seal shall be reproduced on the Debentures and
may be in facsimile form.
If an Officer whose signature is on a Debenture no longer holds that
office at the time a Debenture is authenticated, the Debenture shall
nevertheless be valid.
A Debenture shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Debenture has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuers signed by two
Officers (an "Authentication Order"), authenticate Debentures for original issue
up to the aggregate principal amount stated in paragraph 4 of the Debentures.
The aggregate principal amount of Debentures outstanding at any time may not
exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Debentures. An authenticating agent may authenticate
Debentures whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuers.
29
SECTION 2.03 Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Debentures may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Debentures may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Debentures and of their transfer and
exchange. The Issuers may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Issuers may change
any Paying Agent or Registrar without notice to any Holder. The Issuers shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Issuers fail to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. Holdings or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Debentures.
The Issuers initially appoint the Trustee to act as the Registrar and
Paying Agent and to act as Debenture Custodian with respect to the Global
Debentures.
SECTION 2.04 Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal or premium, if any, or interest on the Debentures, and will notify the
Trustee of any default by the Issuers in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Issuers at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than Holdings or a Subsidiary) shall have no further
liability for the money. If Holdings or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Issuers, the Trustee shall serve as Paying Agent for
the Debentures.
SECTION 2.05 Holder 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
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Debentures and the Issuers shall otherwise comply with TIA (S) 312(a).
SECTION 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Debentures. A Global Debenture
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, the
30
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. All Global Debentures will be exchanged by the Issuers for
Certificated Debentures if (i) the Issuers deliver to the Trustee notice from
the Depositary that it is unwilling or unable to continue to act as Depositary
or that it is no longer a clearing agency registered under the Exchange Act and,
in either case, a successor Depositary is not appointed by the Issuers within
120 days after the date of such notice from the Depositary or (ii) the Issuers
in their sole discretion determine that the Global Debentures (in whole but not
in part) should be exchanged for Certificated Debentures and deliver a written
notice to such effect to the Trustee; provided that in no event shall the
Regulation S Temporary Global Debenture be exchanged by the Issuers for
Certificated Debentures prior to (x) the expiration of the Distribution
Compliance Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act. Upon the
occurrence of either of the preceding events in (i) or (ii) above, Certificated
Debentures shall be issued in such names as the Depositary shall instruct the
Trustee. Global Debentures also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Debenture
authenticated and delivered in exchange for, or in lieu of, a Global Debenture
or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Debenture. A Global Debenture may not be exchanged for another Debenture
other than as provided in this Section 2.06(a), however, beneficial interests in
a Global Debenture may be transferred and exchanged as provided in Section
2.06(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Debentures. The transfer and exchange of beneficial interests in the Global
Debentures shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Debentures shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Debentures also shall
require compliance with either subparagraph (i) or (ii) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Debenture.
Beneficial interests in any Restricted Global Debenture may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Debenture in
accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration of
the Distribution Compliance Period, transfers of beneficial interests
in the Temporary Regulation S Global Debenture may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Beneficial interests in any Unrestricted Global
Debenture may be transferred to Persons who take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Debenture.
No written orders or instructions shall be required to be delivered to
the Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Debentures. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures
31
directing the Depositary to credit or cause to be credited a beneficial
interest in another Global Debenture in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase or (B) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a
Certificated Debenture in an amount equal to the beneficial interest to
be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person
in whose name such Certificated Debenture shall be registered to effect
the transfer or exchange referred to in (1) above; provided that in no
event shall Certificated Debentures be issued upon the transfer or
exchange of beneficial interests in the Regulation S Temporary Global
Debenture prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Debentures contained in this Indenture
and the Debentures or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global
Debenture(s) pursuant to Section 2.06(g) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Debenture. A beneficial interest in any Restricted Global Debenture may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Debenture if the
transfer complies with the requirements of Section 2.06(b)(ii) above
and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Debenture
or the Regulation S Global Debenture, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Debenture, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and Opinion
of Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Debenture for Beneficial Interests in the Unrestricted Global
Debenture. A beneficial interest in any Restricted Global Debenture may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Debenture or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Debenture if the exchange or transfer complies with
the requirements of Section 2.06(b)(ii) above and the Registrar
receives the following:
32
(A) if the holder of such beneficial interest in a Restricted
Global Debenture proposes to exchange such beneficial interest for
a beneficial interest in an Unrestricted Global Debenture, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(B) if the holder of such beneficial interest in a Restricted
Global Debenture proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Debenture, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iv), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (iv) above at
a time when an Unrestricted Global Debenture has not yet been issued, the
Issuers shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (iv) above.
Beneficial interests in an Unrestricted Global Debenture cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Debenture.
(c) Transfer or Exchange of Beneficial Interests for Certificated
Debentures.
(i) Beneficial Interests in Restricted Global Debentures to
Restricted Certificated Debentures. If any holder of a beneficial
interest in a Restricted Global Debenture proposes to exchange such
beneficial interest for a Restricted Certificated Debenture or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Certificated Debenture, then, upon
receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Debenture proposes to exchange such beneficial interest for
a Restricted Certificated Debenture, a certificate from such holder
in the form of Exhibit C hereto, including the certifications in
item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
33
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to
Holdings or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
(H) the Trustee shall cause the aggregate principal amount of
the applicable Global Debenture to be reduced accordingly pursuant
to Section 2.06(g) hereof, and the Issuers shall execute and the
Trustee shall authenticate and deliver to the Person designated in
the instructions a Certificated Debenture in the appropriate
principal amount. Any Certificated Debenture issued in exchange for
a beneficial interest in a Restricted Global Debenture pursuant to
this Section 2.06(c) shall be registered in such name or names and
in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Certificated Debentures
to the Persons in whose names such Debentures are so registered.
Any Certificated Debenture issued in exchange for a beneficial
interest in a Restricted Global Debenture pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Debenture may
not be exchanged for a Certificated Debenture or transferred to a
Person who takes delivery thereof in the form of a Certificated
Debenture prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act,
except in the case of a transfer pursuant to an
34
exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Debentures to
Unrestricted Certificated Debentures. A holder of a beneficial interest
in a Restricted Global Debenture may exchange such beneficial interest
for an Unrestricted Certificated Debenture or may transfer such
beneficial interest to a Person who takes delivery thereof in the form
of an Unrestricted Certificated Debenture only if the Registrar
receives the following:
(A) if the holder of such beneficial interest in a Restricted
Global Debenture proposes to exchange such beneficial interest for
a Certificated Debenture that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or
(B) if the holder of such beneficial interest in a Restricted
Global Debenture proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a
Certificated Debenture that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and in each such case set forth in this subparagraph (iii), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Debentures to
Unrestricted Certificated Debentures. If any holder of a beneficial
interest in an Unrestricted Global Debenture proposes to exchange such
beneficial interest for a Certificated Debenture or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Certificated Debenture, then, upon satisfaction of the conditions
set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Debenture to be
reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuers
shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Certificated Debenture in the
appropriate principal amount. Any Certificated Debenture issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Certificated Debentures to the Persons in
whose names such Debentures are so registered. Any Certificated
Debenture issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.
35
(d) Transfer and Exchange of Certificated Debentures for Beneficial
Interests.
(i) Restricted Certificated Debentures to Beneficial Interests in
Restricted Global Debentures. If any Holder of a Restricted
Certificated Debenture proposes to exchange such Debenture for a
beneficial interest in a Restricted Global Debenture or to transfer
such Restricted Certificated Debentures to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global
Debenture, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Certificated Debenture
proposes to exchange such Debenture for a beneficial interest in a
Restricted Global Debenture, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Certificated Debenture is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such Restricted Certificated Debenture is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof;
(D) if such Restricted Certificated Debenture is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Certificated Debenture is being
transferred to an Institutional Accredited Investor in reliance on
an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(F) if such Restricted Certificated Debenture is being
transferred to Holdings or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Certificated Debenture is being
transferred pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof, the Trustee shall cancel the Restricted Certificated
Debenture, increase or cause to be increased the aggregate
principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Debenture, in the case of clause (B)
above, the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in the case of clause (c)
above, the Regulation S Global Debenture, and in all other cases,
the IAI Global Debenture.
36
(ii) Restricted Certificated Debentures to Beneficial Interests in
Unrestricted Global Debentures. A Holder of a Restricted Certificated
Debenture may exchange such Debenture for a beneficial interest in an
Unrestricted Global Debenture or transfer such Restricted Certificated
Debenture to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Debenture only if the
Registrar receives the following:
(A) if the Holder of such Certificated Debentures proposes to
exchange such Debentures for a beneficial interest in the
Unrestricted Global Debenture, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in item
(1)(c) thereof; or
(B) if the Holder of such Certificated Debentures proposes to
transfer such Debentures to a Person who shall take delivery
thereof in the form of a beneficial interest in the Unrestricted
Global Debenture, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Certificated
Debentures and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Debenture.
(iii) Unrestricted Certificated Debentures to Beneficial Interests
in Unrestricted Global Debentures. A Holder of an Unrestricted
Certificated Debenture may exchange such Debenture for a beneficial
interest in an Unrestricted Global Debenture or transfer such
Certificated Debentures to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Debenture at
any time. Upon receipt of a request for such an exchange or transfer,
the Trustee shall cancel the applicable Unrestricted Certificated
Debenture and increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Debentures.
If any such exchange or transfer from a Certificated Debenture to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Debenture has not yet been
issued, the Issuers shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures in an aggregate principal amount equal to the
principal amount of Certificated Debentures so transferred.
(e) Transfer and Exchange of Certificated Debentures for
Certificated Debentures. Upon request by a Holder of Certificated Debentures and
such Holder's compliance
37
with the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Certificated Debentures. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Certificated Debentures duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(i) Restricted Certificated Debentures to Restricted Certificated
Debentures. Any Restricted Certificated Debenture may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Certificated Debenture if the Registrar receives
the following:
(A) the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item
(1) thereof;
(B) the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) Restricted Certificated Debentures to Unrestricted
Certificated Debentures. Any Restricted Certificated Debenture may be
exchanged by the Holder thereof for an Unrestricted Certificated
Debenture or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Certificated Debenture if the
Registrar receives the following:
(A) if the Holder of such Restricted Certificated Debentures
proposes to exchange such Debentures for an Unrestricted
Certificated Debenture, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (1)(d)
thereof; or
(B) if the Holder of such Restricted Certificated Debentures
proposes to transfer such Debentures to a Person who shall take
delivery thereof in the form of an Unrestricted Certificated
Debenture, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Issuers to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
38
(iii) Unrestricted Certificated Debentures to Unrestricted
Certificated Debentures. A Holder of Unrestricted Certificated
Debentures may transfer such Debentures to a Person who takes delivery
thereof in the form of an Unrestricted Certificated Debenture. Upon
receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Certificated Debentures pursuant to the
instructions from the Holder thereof.
(f) Legends. The following legends shall appear on the face of
all Global Debentures and Certificated Debentures issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below in the
event any Global Note issued hereunder is a Restricted Global Note
or any Certificated Note issued hereunder is a Restricted
Certificated Note, each such Global Debenture and each such
Certificated Debenture (and all Debentures issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form
"THIS DEBENTURE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
1. REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT
HAS ACQUIRED THIS DEBENTURE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)
(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN
"IAI"),
2. AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
DEBENTURE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO
SUCH TRANSFER, FURNISHES THE TRUSTEE A
39
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS DEBENTURE (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT
OF AN AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES LESS THAN $250,000,
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND
3. AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
DEBENTURE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
DEBENTURE IN VIOLATION OF THE FOREGOING."
(B) Notwithstanding the foregoing, any Global Note or
Certificated Note issued on the date hereof which is not a Restricted
Global Note or Restricted Certificate Note, or any Global Debenture or
Certificated Debenture issued pursuant to subparagraphs (b)(iv),
(c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this
Section 2.06 (and all Debentures issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Debenture Legend. Each Global Debenture shall bear a
legend in substantially the following form:
"THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS DEBENTURE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF
THE INDENTURE, (II) THIS GLOBAL DEBENTURE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL DEBENTURE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
40
DEBENTURE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE ISSUERS."
(iii) Regulation S Temporary Global Debenture Legend. The
Regulation S Temporary Global Debenture shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL DEBENTURE,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED DEBENTURES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL DEBENTURE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON."
(g) Cancellation and/or Adjustment of Global Debentures. At such
time as all beneficial interests in a particular Global Debenture have been
exchanged for Certificated Debentures or a particular Global Debenture has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Debenture shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Debenture is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Debenture or for Certificated Debentures, the principal amount of
Debentures represented by such Global Debenture shall be reduced accordingly and
an endorsement shall be made on such Global Debenture by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Debenture, such other Global Debenture shall be increased accordingly and an
endorsement shall be made on such Global Debenture by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Global
Debentures and Certificated Debentures upon the Issuers' order or at
the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Debenture or to a Holder of a Certificated
Debenture for any registration of transfer or exchange, but the Issuers
may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15
and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Debenture selected for redemption in whole or in
part, except the unredeemed portion of any Debenture being redeemed in
part.
41
(iv) All Global Debentures and Certificated Debentures issued
upon any registration of transfer or exchange of Global Debentures or
Certificated Debentures shall be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Debentures or Certificated Debentures
surrendered upon such registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to register
the transfer of or to exchange any Debentures during a period beginning
at the opening of business 15 days before the day of any selection of
Debentures for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (B) to register the transfer
of or to exchange any Debenture so selected for redemption in whole or
in part, except the unredeemed portion of any Debenture being redeemed
in part or (c) to register the transfer of or to exchange a Debenture
between a record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Debenture, the Trustee, any Agent and the Issuers may deem and
treat the Person in whose name any Debenture is registered as the
absolute owner of such Debenture for the purpose of receiving payment
of principal of and interest on such Debentures and for all other
purposes, and none of the Trustee, any Agent or the Issuers shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Debentures and
Certificated Debentures in accordance with the provisions of Section
2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07 Replacement Debentures.
If any mutilated Debenture is surrendered to the Trustee or the Issuers
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Debenture, the Issuers shall issue and the Trustee, upon receipt
of an Authentication Order, shall authenticate a replacement Debenture if the
Trustee's requirements are met. If required by the Trustee or the Issuers, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a
Debenture is replaced. The Issuers may charge for their expenses in replacing a
Debenture.
Every replacement Debenture is an additional obligation of the Issuers
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Debentures duly issued hereunder.
SECTION 2.08 Outstanding Debentures.
The Debentures outstanding at any time are all the Debentures
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in
42
the interest in a Global Debenture effected by the Trustee in accordance with
the provisions hereof, and those described in this Section as not outstanding.
Except as set forth in Section 2.09 hereof, a Debenture does not cease to be
outstanding because Holdings or an Affiliate of Holdings holds the Debenture;
however, Debentures held by Holdings or a Subsidiary of Holdings shall not be
deemed to be outstanding for purposes of Section 3.07(b) hereof.
If a Debenture is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
If the principal amount of any Debenture is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than Holdings, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Debentures payable on that date, then on and after that date such
Debentures shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09 Treasury Debentures.
In determining whether the Holders of the required principal amount of
Debentures have concurred in any direction, waiver or consent, Debentures owned
by Holdings, or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with Holdings, shall be considered
as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Debentures that the Trustee knows are so owned shall be so
disregarded.
SECTION 2.10 Temporary Debentures.
Until certificates representing Debentures are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Debentures. Temporary Debentures shall be
substantially in the form of certificated Debentures but may have variations
that the Issuers consider appropriate for temporary Debentures and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Issuers
shall prepare and the Trustee shall authenticate definitive Debentures in
exchange for temporary Debentures.
Holders of temporary Debentures shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11 Cancellation.
The Issuers at any time may deliver Debentures to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Debentures surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Debentures surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Debentures (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all cancelled
Debentures shall be
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delivered to the Issuers. The Issuers may not issue new Debentures to replace
Debentures that it has paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12 Defaulted Interest.
If the Issuers default in a payment of interest on the Debentures, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Debentures and in Section 4.01 hereof. The Issuers shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Debenture and the date of the proposed payment. The Issuers shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Issuers (or, upon the written request of the Issuers, the
Trustee in the name and at the expense of the Issuers) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01 Notices to Trustee.
If the Issuers elect to redeem Debentures pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Debentures to be redeemed, (iv) the redemption price and (v) the CUSIP
numbers of the Debentures to be redeemed.
SECTION 3.02 Selection of Debentures to Be Redeemed.
If less than all of the Debentures are to be redeemed or purchased in
an offer to purchase at any time, the Trustee shall select the Debentures to be
redeemed or purchased among the Holders of the Debentures in compliance with the
requirements of the principal national securities exchange, if any, on which the
Debentures are listed or, if the Debentures are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee considers fair
and appropriate. In the event of partial redemption by lot, the particular
Debentures to be redeemed shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption date by the
Trustee from the outstanding Debentures not previously called for redemption.
The Trustee shall promptly notify the Issuers in writing of the
Debentures selected for redemption and, in the case of any Debenture selected
for partial redemption, the principal amount thereof to be redeemed. Debentures
and portions of Debentures selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Debentures of a Holder are to be
redeemed, the entire outstanding amount of Debentures held by such Holder, even
if not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence,
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provisions of this Indenture that apply to Debentures called for redemption also
apply to portions of Debentures called for redemption.
SECTION 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Issuers shall mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Debentures are to be redeemed at its registered address.
The notice shall identify the Debentures to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Debenture is being redeemed in part, the portion of the
principal amount of such Debenture to be redeemed and that, after the redemption
date upon surrender of such Debenture, a new Debenture or Debentures in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Debenture;
(d) the name and address of the Paying Agent;
(e) that Debentures called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption
payment, interest on Debentures called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Debentures and/or Section of this
Indenture pursuant to which the Debentures called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Debentures.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at its expense; provided, however, that the
Issuers shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Debentures called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
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SECTION 3.05 Deposit of Redemption Price.
One Business Day prior to the redemption date, the Issuers shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Debentures to be redeemed on
that date. The Trustee or the Paying Agent shall promptly return to the Issuers
any money deposited with the Trustee or the Paying Agent by the Issuers in
excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Debentures to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the
Debentures or the portions of Debentures called for redemption. If a Debenture
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Debenture was registered at the close of business on
such record date. If any Debenture called for redemption shall not be so paid
upon surrender for redemption because of the failure of the Issuers to comply
with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case at the rate
provided in the Debentures and in Section 4.01 hereof.
SECTION 3.06 Debentures Redeemed in Part.
Upon surrender of a Debenture that is redeemed in part, the Issuers
shall issue and, upon the Issuers' written request, the Trustee shall
authenticate for the Holder at the expense of the Issuers a new Debenture equal
in principal amount to the unredeemed portion of the Debenture surrendered.
SECTION 3.07 Optional Redemption.
(a) Except as provided below, the Debentures will not be redeemable
at the Issuers' option prior to August 1, 2003. Thereafter, the Debentures will
be subject to redemption at any time at the option of the Issuers, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on August 1 of the years
indicated below:
PERCENTAGE OF
YEAR PRINCIPAL AMOUNT
---- ----------------
2003 ....................................... 106.688%
2004 ....................................... 104.458%
2005 ....................................... 102.229%
2006 and thereafter ........................ 100.000%
(b) Notwithstanding the foregoing, at any time prior to [__], 2006,
the Issuers may on any one or more occasions redeem up to 35% of the aggregate
principal amount at maturity of Debentures originally issued under the Indenture
at a redemption price of 112.375% of the Accreted Value thereof (as determined
on the redemption date), to the redemption date, with the net cash proceeds of
any Equity Offerings; provided that at least 65% of the aggregate
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principal amount at maturity of Debentures originally issued remain outstanding
immediately after the occurrence of such redemption (excluding Debentures held
by Holdings and its Subsidiaries); and provided further that such redemption
shall occur within 120 days of the date of the closing of any such Equity
Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08 Mandatory Redemption.
The Issuers shall not be required to make mandatory redemption payments
with respect to the Debentures.
SECTION 3.09 Offer to Purchase by Application of Net Proceeds Offer Amount.
In the event that, pursuant to Section 4.10 hereof, Holdings shall be
required to commence a Net Proceeds Offer, it shall follow the procedures
specified below.
The Net Proceeds Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), Holdings shall purchase the Net Proceeds Offer Amount of Debentures or,
if less than the Net Proceeds Offer Amount has been tendered, all Debentures
tendered in response to the Net Proceeds Offer. Payment for any Debentures so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Debenture is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Debentures pursuant to the Net Proceeds Offer.
Upon the commencement of an Net Proceeds Offer, Holdings shall send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Debentures pursuant to the Net
Proceeds Offer. The Net Proceeds Offer shall be made to all Holders. The notice,
which shall govern the terms of the Net Proceeds Offer, shall state:
(a) that the Net Proceeds Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Net Proceeds
Offer shall remain open;
(b) the Net Proceeds Offer Amount, the purchase price and the
Purchase Date;
(c) that any Debenture not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless Holdings defaults in making such payment, any
Debenture accepted for payment pursuant to the Net Proceeds Offer shall cease to
accrue interest after the Purchase Date;
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(e) that Holders electing to have a Debenture purchased pursuant to
an Net Proceeds Offer may only elect to have all of such Debenture purchased and
may not elect to have only a portion of such Debenture purchased;
(f) that Holders electing to have a Debenture purchased pursuant to
any Net Proceeds Offer shall be required to surrender the Debenture, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Debenture completed, or transfer by book-entry transfer, to Holdings, a
depositary, if appointed by Holdings, or a Paying Agent at the address specified
in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
Holdings, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Debenture the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Debenture purchased;
(h) that, if the aggregate principal amount of Debentures
surrendered by Holders exceeds the Offer Amount, Holdings shall select the
Debentures to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by Holdings so that only Debentures in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Debentures were purchased only in part shall
be issued new Debentures equal in principal amount to the unpurchased portion of
the Debentures surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, Holdings shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Net
Proceeds Offer Amount of Debentures or portions thereof tendered pursuant to the
Net Proceeds Offer, or if less than the Net Proceeds Offer Amount has been
tendered, all Debentures tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Debentures or portions thereof were accepted for
payment by Holdings in accordance with the terms of this Section 3.09. Holdings,
the Depositary or the Paying Agent, as the case may be, shall promptly (but in
any case not later than five days after the Purchase Date) mail or deliver to
each tendering Holder an amount equal to the purchase price of the Debentures
tendered by such Holder and accepted by Holdings for purchase, and Holdings
shall promptly issue a new Debenture, and the Trustee, upon written request from
Holdings shall authenticate and mail or deliver such new Debenture to such
Holder, in a principal amount equal to any unpurchased portion of the Debenture
surrendered. Any Debenture not so accepted shall be promptly mailed or delivered
by Holdings to the Holder thereof. Holdings shall publicly announce the results
of the Net Proceeds Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
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ARTICLE 4.
COVENANTS
SECTION 4.01 Payment of Debentures.
The Issuers shall pay or cause to be paid the principal of, premium, if
any, and interest on the Debentures on the dates and in the manner provided in
the Debentures. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than Holdings or a Subsidiary
thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by
the Issuers in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due.
The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Debentures to
the extent lawful; 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 period) at the same rate to the extent
lawful.
SECTION 4.02 Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Debentures may be surrendered
for registration of transfer or for exchange and where notices and demands to or
upon the Issuers in respect of the Debentures and this Indenture may be served.
The Issuers shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Issuers
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.
The Issuers may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuers of their obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Issuers shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Issuers hereby designate the Corporate Trust Office of the Trustee
as one such office or agency of the Issuers in accordance with Section 2.03.
SECTION 4.03 Reports.
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Debentures are outstanding, the Issuers will furnish to the
Holders of Debentures (i) all quarterly and annual financial information that
would be required to be contained in a filing with the SEC on Forms 10-Q and 10-
K if Holdings were required to file such Forms, including a
49
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
Holdings and its consolidated Subsidiaries and, with respect to the annual
information only, a report thereon by Holdings' certified independent
accountants and (ii) all current reports that would be required to be filed with
the SEC on Form 8-K if Holdings were required to file such reports, in each case
within the time periods specified in the SEC's rules and regulations.
(b) For so long as any Debentures remain outstanding, the Company
agrees to provide promptly the information set forth in Section 4.03(a) above to
any Person that certifies in writing that it is contemplating a purchase of
Debentures and that it qualifies as a QIB.
SECTION 4.04 Compliance Certificate.
(a) Holdings shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of Holdings and its Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether Holdings has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge Holdings has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action Holdings is taking
or proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Debentures
is prohibited or if such event has occurred, a description of the event and what
action Holdings is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of Holdings' independent public accountants (who shall be a
firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that Holdings has violated any
provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) Holdings shall, so long as any of the Debentures are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action Holdings is taking or proposes to
take with respect thereto.
SECTION 4.05 Taxes.
Holdings shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good
50
faith and by appropriate proceedings or where the failure to effect such payment
is not adverse in any material respect to the Holders of the Debentures.
SECTION 4.06 Stay, Extension and Usury Laws.
The Issuers covenant (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Issuers (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07 Restricted Payments.
Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of Holdings' or any of its
Subsidiaries' Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving Holdings or any of its
Subsidiaries) or to the direct or indirect holders of Holdings' or any of its
Subsidiaries' Equity Interests in their capacity as such (other than dividends
or distributions payable in Qualified Capital Stock of Holdings or the Company);
(ii) purchase, redeem or otherwise acquire or retire for value (including,
without limitation, in connection with any merger or consolidation involving
Holdings) any Equity Interests of Holdings or any direct or indirect parent of
Holdings; (iii) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Debentures (other than intercompany Indebtedness), except a
payment of interest or principal at stated maturity; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) Holdings would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable Four-Quarter Period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated
Fixed Charge Coverage Ratio test set forth in the first paragraph of Section
4.09; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by Holdings and its Restricted Subsidiaries
after July 22, 1998 (excluding Restricted Payments permitted by clauses (3), (4)
(but only to the extent such Restricted Payment is made with the cash proceeds
received by Holdings or one of its Restricted Subsidiaries from any "key man"
life insurance policies), (5), (7), (8) and (9) of the next succeeding
paragraph), is less than the sum, without duplication, of (i) 50% of the
Consolidated
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Net Income of Holdings for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after July 22, 1998 to the end
of Holdings' most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (ii) 100% of the aggregate net proceeds (including the fair
market value of property other than cash (determined in good faith by the
Management Committee as evidenced by a certificate filed with the Trustee,
except that in the event the value of any non-cash consideration shall be $15.0
million or more, the value shall be determined based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing)) received by Holdings since July 22, 1998 as a contribution
to its common equity capital or from the issue or sale of Equity Interests
(other than Disqualified Stock) of Holdings (excluding any net proceeds from an
Equity Offering or capital contribution to the extent used to redeem Debentures
in accordance with the optional redemption provisions of the Debentures) or from
the issue or sale of Disqualified Stock or debt securities of Holdings that have
been converted into such Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a Subsidiary of
Holdings), plus (iii) to the extent that any Restricted Investment that was made
after July 22, 1998 is sold for cash or otherwise liquidated or repaid for cash,
the cash return of capital with respect to such Restricted Investment (less the
cost of disposition, if any), plus (iv) any dividends (the fair market value of
property other than cash shall be determined in good faith by the Management
Committee as evidenced by a certificate filed with the trustee, except that in
the event the value of any non-cash consideration shall be $15.0 million or
more, the value shall be determined based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing)
received by Holdings or a Restricted Subsidiary after July 22, 1998 from any
Unrestricted Subsidiary of Holdings, to the extent that such dividends were not
otherwise included in Consolidated Net Income of Holdings for such period, plus
(v) to the extent that any Unrestricted Subsidiary is redesignated as a
Restricted Subsidiary after July 22, 1998, if as a result of such redesignation,
(x) the Fixed Charge Coverage Ratio of Holdings on a pro forma basis is lower
than such ratio immediately prior thereto, then the lesser of (A) the fair
market value of Holdings' Investment in such Subsidiary as of the date of such
redesignation or (B) such fair market value as of the date on which such
Subsidiary was originally designated as an Unrestricted Subsidiary or (y) the
Fixed Charge Coverage Ratio of Holdings on a pro forma basis is equal to or
higher than such ratio immediately prior thereto, the fair market value of
Holdings Investment in such Subsidiary as of the date of such redesignation.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph will not prohibit (1) the payment of any
dividend or the consummation of any irrevocable redemption within 60 days after
the date of declaration of such dividend or notice of such redemption if the
dividend or payment of the redemption price, as the case may be, would have been
permitted on the date of declaration or notice; (2) if no Event of Default shall
have occurred and be continuing or shall occur as a consequence thereof, the
acquisition of any Capital Stock of Holdings (the "Retired Capital Stock"),
either (i) solely in exchange for Qualified Capital Stock of Holdings (the
"Refunding Capital Stock"), or (ii) through the application of the net proceeds
of a substantially concurrent sale for cash (other than to a Subsidiary of
Holdings) of Qualified Capital Stock of Holdings, and, in the case of subclause
(i) of this clause (2), if immediately prior to the retirement of the Retired
Capital Stock the declaration and payment of dividends thereon was permitted
under clause (3) of this paragraph,
52
the declaration and payment of dividends on the Refunding Capital Stock in an
aggregate amount per year no greater than the aggregate amount of dividends per
annum that was declarable and payable on such Retired Capital Stock immediately
prior to such retirement; provided that at the time of the declaration of any
such dividends on the Refunding Capital Stock, no Default or Event of Default
shall have occurred and be continuing or would occur as a consequence thereof;
(3) if no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof, the declaration and payment of dividends
to holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) issued after July 22, 1998 (including, without limitation,
the declaration and payment of dividends on Refunding Capital Stock in excess of
the dividends declarable and payable thereon pursuant to clause (2) of this
paragraph); provided that, at the time of such issuance, Holdings, after giving
effect to such issuance on a pro forma basis, would have had a Consolidated
Fixed Charge Coverage Ratio of at least 1.75 to 1.0 for the most recent
Four-Quarter Period; (4) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of Holdings or any Subsidiary of
Holdings held by any former member of the Holdings' (or any of its
Subsidiaries') management committee or any former officer, employee or director
of Holdings or any of its Subsidiaries pursuant to any equity subscription
agreement, stock option agreement, employment agreement or other similar
agreements; provided that (A) the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed (x) $1.5 million
in any calendar year (with unused amounts in any calendar year being carried
over to succeeding calendar years) plus (y) the aggregate cash proceeds received
by Holdings or the Company during such calendar year from any reissuance of
Equity Interests by Holdings or the Company to members of management of
Holdings, the Company and their Restricted Subsidiaries and (B) no Default or
Event of Default shall have occurred and be continuing immediately after such
transaction; provided, further that the aggregate cash proceeds referred to in
(y) above shall be excluded from clause (c)(ii) of the preceding paragraph; (5)
if no Default or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof, other Restricted Payments in an aggregate amount
not to exceed $12.0 million since July 22, 1998; (6) repurchases of Capital
Stock deemed to occur upon the exercise of stock options if such Capital Stock
represents a portion of the exercise price thereof; (7) distributions to the
Former Owners to fund the Transactions; (8) so long as Holdings is treated as a
partnership or disregarded as an entity separate from its owners for federal
income tax purposes, distributions to the partners of Holdings in an amount with
respect to any period after June 30, 1998 not to exceed the Tax Amount of
Holdings for such period; and (9) payment of any portion of the Consent Fee.
The Management Committee may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by Holdings
and its Restricted Subsidiaries (except to the extent repaid in cash) in the
Subsidiary so designated will be deemed to be Restricted Payments at the time of
such designation and will reduce the amount available for Restricted Payments
under the first paragraph of this covenant. All such outstanding Investments
will be deemed to constitute Investments in an amount equal to the fair market
value of such Investments at the time of such designation. Such designation will
only be permitted if such Restricted Payment would be permitted at such time and
if such Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
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The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by Holdings or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment.
SECTION 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, directly an indirectly, create or otherwise cause or permit to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to (a) pay dividends or make any
other distributions on or in respect of its Capital Stock, (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of Holdings or (c) transfer any of its property
or assets to Holdings or any other Restricted Subsidiary of Holdings, except for
such encumbrances or restrictions existing under or by reason of: (1) applicable
law; (2) this Indenture, the Debentures, the New Notes, the New Note Indenture,
the Old Notes, the Old Note Indenture, the Old Debentures, the Old Debentures
Indenture and any Guarantees issued by any Subsidiary of Holdings under the Old
Note Indenture or the New note Indenture; (3) non-assignment provisions of any
contract or any lease entered into in the ordinary course of business; (4) any
instrument governing Acquired Indebtedness, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person or the properties or assets of the Person so acquired; (5)
agreements existing on July 22, 1998; (6) the Credit Facilities; (7)
restrictions on the transfer of assets subject to any Lien permitted under this
Indenture imposed by the holder of such Lien; (8) restrictions imposed by any
agreement to sell assets or Capital Stock permitted under this Indenture to any
Person pending the closing of such sale; (9) any agreement or instrument
governing Capital Stock of any Person that is in effect on the date such Person
is acquired by Holdings or a Restricted Subsidiary of Holdings; (10) any
Purchase Money Note, or other Indebtedness or other contractual requirements of
a Securitization Entity in connection with a Qualified Securitization
Transaction; provided that such restrictions apply only to such Securitization
Entity; (11) other Indebtedness permitted to be incurred subsequent to July 22,
1998 pursuant to Section 4.09; provided that any such restrictions are ordinary
and customary with respect to the type of Indebtedness or preferred stock being
incurred or issued (under the relevant circumstances); (12) restrictions on cash
or other deposits or net worth imposed by customers under contracts entered into
in the ordinary course of business; (13) the Fourth Liens; and (14) any
encumbrances or restrictions imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in clauses
(1) through (13) above; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Management Committee, no
more restrictive with respect to such dividend and other payment restrictions
than those contained in the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.
54
SECTION 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness and that Holdings will
not issue any Disqualified Stock and will not permit any of its Restricted
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Issuers may incur Indebtedness or issue shares of Disqualified Stock and
Holdings' Restricted Subsidiaries may incur Indebtedness or issue shares of
preferred stock if (i) no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the incurrence of any such
Indebtedness or the issuance of any such Disqualified Stock, and (ii) the
Consolidated Fixed Charge Coverage Ratio for Holdings' most recently ended Four-
Quarter Period would have been at least 1.75 to 1.0, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred, or the Disqualified Stock had
been issued, at the beginning of such Four-Quarter Period.
The provisions of the first paragraph of this covenant will not apply
to the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Indebtedness"):
(i) the incurrence of Indebtedness under this Indenture,
including that represented by the Debentures; the incurrence of
Indebtedness under the Old Debenture Indenture, including that
represented by the Old Debentures; the incurrence of Indebtedness under
the Old Note Indenture, including that represented by the Old Notes
(including any Guarantees thereunder), the incurrence of Indebtedness
under the New Note Indenture including that represented by the New
Notes (including any Guarantees thereunder);
(ii) the incurrence by Holdings and its Restricted Subsidiaries of
Indebtedness incurred pursuant to one or more Credit Facilities in an
aggregate principal amount at any time outstanding (with letters of
credit being deemed to have a principal amount equal to the maximum
potential liability of Holdings and its Subsidiaries thereunder) not to
exceed the amount of any and all obligations now or hereafter arising
under the Credit Facilities in accordance with their terms;
(iii) the incurrence by Holdings and its Restricted Subsidiaries of
Indebtedness under Currency Agreements;
(iv) the incurrence by Holdings and its Restricted Subsidiaries of
Existing Indebtedness;
(v) Interest Swap Obligations of Holdings and its Restricted
Subsidiaries covering Indebtedness of Holdings and its Restricted
Subsidiaries; provided that any Indebtedness to which any such Interest
Swap Obligations correspond is otherwise permitted to be incurred under
this Indenture; and provided, further, that such Interest Swap
Obligations are entered into, in the judgment of Holdings, to protect
Holdings and its Restricted Subsidiaries from fluctuation in interest
rates on its outstanding Indebtedness;
55
(vi) the incurrence by Holdings or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among Holdings and
any of its Restricted Subsidiaries; provided, however, that (i) if
Holdings is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
Obligations with respect to the Debentures and (ii)(A) any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than Holdings or a Subsidiary
thereof and (B) any sale or other transfer of any such Indebtedness to
a Person that is not either Holdings or a Restricted Subsidiary thereof
shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by Holdings or such Restricted Subsidiary, as the case may
be, that was not permitted by this clause (vi);
(vii) the incurrence of Acquired Indebtedness of Restricted
Subsidiaries of Holdings to the extent Holdings could have incurred
such Indebtedness in accordance with the first paragraph of this
covenant on the date such Indebtedness became Acquired Indebtedness;
(viii) Guarantees by Holdings and its Restricted Subsidiaries of
each other's Indebtedness; provided that such Indebtedness is permitted
to be incurred under this Indenture;
(ix) Indebtedness (including Capitalized Lease Obligations)
incurred by Holdings or any of its Restricted Subsidiaries to finance
the purchase, lease or improvement of property (real or personal) or
equipment (whether through the direct purchase of assets or the Capital
Stock of any Person owning such assets) in an aggregate principal
amount outstanding not to exceed 5% of Total Assets at the time of any
incurrence thereof (including any Refinancing Indebtedness with respect
thereto) (which amount may, but need not, be incurred in whole or in
part under the Senior Credit Facilities);
(x) the incurrence of Indebtedness (including letters of credit)
in respect of workers' compensation claims, self-insurance obligations,
performance, surety, bid or similar bonds and completion guarantees
provided by Holdings or a Restricted Subsidiary in the ordinary course
of business and consistent with past practices;
(xi) Indebtedness arising from agreements of Holdings or a
Restricted Subsidiary of Holdings providing for indemnification,
adjustment of purchase price, earn out or other similar obligations, in
each case, incurred or assumed in connection with the disposition of
any business, assets or a Restricted Subsidiary of Holdings, other than
guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for the
purpose of financing such acquisition; provided that the maximum
assumable liability in respect of all such Indebtedness shall at no
time exceed the gross proceeds actually received by Holdings and its
Restricted Subsidiaries in connection with such disposition;
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(xii) obligations in respect of performance and surety bonds and
completion guarantees provided by Holdings or any Restricted Subsidiary
of Holdings in the ordinary course of business;
(xiii) any refinancing, modification, replacement, renewal,
restatement, refunding, defeasance, deferral, extension, substitution,
supplement, reissuance or resale of existing or future Indebtedness
(other than intercompany Indebtedness), including any additional
Indebtedness incurred to pay interest or premiums required by the
instruments governing such existing or future Indebtedness as in effect
at the time of issuance thereof ("Required Premiums") and fees in
connection therewith ("Refinancing Indebtedness"); provided that (1)
any such event shall not directly or indirectly result in an increase
in the aggregate principal amount of Permitted Indebtedness (except to
the extent such increase is a result of a simultaneous incurrence of
additional Indebtedness (A) to pay Required Premiums and related fees
or (B) otherwise permitted to be incurred under this Indenture) of
Holdings and its Restricted Subsidiaries, (2) such Refinancing
Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded,
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the
Debentures, such Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of
payment to, the Debentures on terms at least as favorable to the
Holders as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(xiv) the incurrence by Holdings or any of its Restricted
Subsidiaries of additional Indebtedness and/or the issuance of
Disqualified Stock in an aggregate principal amount or aggregate
liquidation value, as applicable (or accreted value, as applicable), at
any time outstanding, including all Refinancing Indebtedness incurred
to refund, refinance or replace any Indebtedness incurred pursuant to
this clause (xiv), not to exceed $20 million; and
(xv) the incurrence by a Securitization Entity of Indebtedness in
a Qualified Securitization Transaction that is Non-Recourse Debt
(except for Standard Securitization Undertakings) with respect to
Holdings and its other Restricted Subsidiaries.
The Issuers shall also not incur any Indebtedness (including Permitted
Indebtedness) that is contractually subordinated in right of payment to any
other Indebtedness of the Issuers unless such Indebtedness is also contractually
subordinated in right of payment to the Debentures on substantially identical
terms; provided, however, that no Indebtedness of the Issuers shall be deemed to
be contractually subordinated in right of payment to any other Indebtedness of
the Issuers solely by virtue of being unsecured.
For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (i) through (xv) above
or is entitled to be incurred pursuant to the first paragraph of this Section
4.09, the Issuers shall, in their sole discretion, classify such item of
57
Indebtedness in any manner that complies with this Section 4.09. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock shall not be deemed to
be an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this Section 4.09; provided, in each such case, that the amount
thereof is included in Consolidated Fixed Charges of Holdings as accrued.
SECTION 4.10 Asset Sales.
Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) Holdings or the applicable
Restricted Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the fair market value of the assets sold or
otherwise disposed of (as determined in good faith by the Management Committee),
(ii) at least 75% of the consideration received by Holdings or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be cash or Cash
Equivalents; provided that the amount of (a) any liabilities (as shown on
Holdings or such Restricted Subsidiary's most recent balance sheet) of Holdings
or any such Restricted Subsidiary (other than liabilities that are by their
terms subordinated to the Debentures) that are assumed by the transferee of any
such assets, (b) any Debentures or other obligations received by Holdings or any
such Restricted Subsidiary from such transferee that are immediately converted
by Holdings or such Restricted Subsidiary into cash (to the extent of the cash
received), and (c) any Designated Noncash Consideration received by Holdings or
any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair
market value, taken together with all other Designated Noncash Consideration
received pursuant to this clause (c) that is at that time outstanding, not to
exceed 10% of Total Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect to
subsequent changes in value), shall be deemed to be cash for the purposes of
this provision, and (iii) upon the consummation of an Asset Sale, Holdings shall
apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 365 days of receipt thereof to reinvest in
Productive Assets or to repay Indebtedness under the Senior Credit Facilities.
Pending the final application of any such Net Cash Proceeds, Holdings or such
Restricted Subsidiary may invest such Net Cash Proceeds in Cash Equivalents.
On the 366th day after an Asset Sale or such earlier date, if any, as
the Management Committee or such Restricted Subsidiary determines not to apply
the Net Cash Proceeds relating to such Asset Sale as set forth in clause (iii)
of the preceding paragraph (each, a "Net Proceeds Offer Trigger Date"), the
aggregate amount of Net Cash Proceeds that have not been applied on or before
such Net Proceeds Offer Trigger Date as permitted in clause (iii) of the
preceding paragraph (each a "Net Proceeds Offer Amount") shall be applied by
Holdings or such Restricted Subsidiary to make an offer to purchase (the "Net
Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than
30 nor more than 45 days following the applicable Net Proceeds Offer Trigger
Date, (x) from all holders of New Notes on a pro rata basis that amount of New
Notes equal to the Net Proceeds Offer Amount at a price equal to 100% of the
principal amount of the New Notes to be purchased, plus accrued and unpaid
interest thereon, if any, to the date of purchase, or (y) from all Holders on a
pro rata basis that amount of Debentures equal to
58
the Net Proceeds Offer Amount at a price equal to 100% of the Accreted Value
thereof on the date of repurchase (if such date of repurchase is prior to August
1, 2003) or 100% of the principal amount of the Debentures to be purchased (if
such date of repurchase is on or after August 1, 2003), plus, in each case,
accrued and unpaid interest thereon, if any, to the date of purchase; provided,
however, that if at any time any non-cash consideration (including any
Designated Noncash Consideration) received by Holdings or any Restricted
Subsidiary of Holdings, as the case may be, in connection with any Asset Sale is
converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then such conversion
or disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less
than $10.0 million, the application of the Net Cash Proceeds constituting such
Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such
time as such Net Proceeds Offer Amount plus the aggregate amount of all Net
Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date
relating to such initial Net Proceeds Offer Amount from all Asset Sales by
Holdings and its Restricted Subsidiaries aggregates at least $10.0 million, at
which time Holdings or such Restricted Subsidiary shall apply all Net Cash
Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred
to make a Net Proceeds Offer (the first date the aggregate of all such deferred
Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to
be a "Net Proceeds Offer Trigger Date").
Notwithstanding the two immediately preceding paragraphs, Holdings and
its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraphs to the extent (i) at least 75% of the
consideration for such Asset Sale constitutes Productive Assets, cash, Cash
Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair
market value (as determined in good faith by the Management Committee of the
General Partner); provided that any consideration not constituting Productive
Assets received by Holdings or any of its Restricted Subsidiaries in connection
with any Asset Sale permitted to be completed under this paragraph shall be
subject to the provisions of the two preceding paragraphs.
Each Net Proceeds Offer will be mailed to the record Holders as shown
on the register of Holders within 25 days following the Net Proceeds Offer
Trigger Date, with a copy to the Trustee, and shall comply with the procedures
set forth in Section 3.09. To the extent that the aggregate amount of Debentures
tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer
Amount, Holdings may use any remaining Net Proceeds Offer Amount for general
corporate purposes. Upon completion of any such Net Proceeds Offer, the Net
Proceeds Offer Amount shall be reset at zero.
The Issuers shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Debentures pursuant to a Net Proceeds Offer. To the extent that
the provisions of any securities laws or regulations conflict with the Asset
Sale provisions of this Indenture, the Issuers shall comply with the applicable
securities laws and
59
regulations and shall not be deemed to have breached its obligations under the
Asset Sale provisions of this Indenture by virtue thereof.
SECTION 4.11 Transactions With Affiliates.
(a) Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to occur any
transaction or series or related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (an "Affiliate
Transaction"), other than (x) Affiliate Transactions permitted under paragraph
(b) below and (y) Affiliate Transactions on terms that are not materially less
favorable than those that would have been obtained in a comparable transaction
at such time on an arm's-length basis from a Person that is not an Affiliate of
the Company or any of its Restricted Subsidiaries; provided, however, that for a
transaction or series of related transactions with an aggregate value of $5.0
million or more, at Holdings option, either (i) a majority of the disinterested
members of the Management Committee shall determine in good faith that such
Affiliate Transaction is on terms that are not materially less favorable than
those that might reasonably have been obtained in a comparable transaction at
such time on an arm's-length basis from a Person that is not an Affiliate of
Holdings or (ii) the Management Committee or any such Restricted Subsidiary
party to such Affiliate Transaction shall have received an opinion from a
nationally recognized investment banking firm that such Affiliate Transaction is
on terms not materially less favorable than those that might reasonably have
been obtained in a comparable transaction at such time on an arm's-length basis
from a Person that is not an Affiliate of Holdings; and provided, further, that
for an Affiliate Transaction with an aggregate value of $10.0 million or more
the Management Committee or any such Restricted Subsidiary party to such
Affiliate Transaction shall have received an opinion from a nationally
recognized investment banking firm that such Affiliate Transaction is on terms
not materially less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate of Holdings.
(b) The foregoing restrictions shall not apply to (i) reasonable
fees and compensation paid to and indemnity provided on behalf of, officers,
directors, employee or consultants of Holdings or any Subsidiary as determined
in good faith by the Management Committee or senior management; (ii)
transactions exclusively between or among Holdings and any of its Restricted
Subsidiaries or exclusively between or among such Restricted Subsidiaries,
provided such transactions are not otherwise prohibited by this Indenture; (iii)
any agreement as in effect as of July 22, 1998 or the date of this Indenture, or
any amendment or replacement thereto or any transaction contemplated thereby
(including pursuant to any amendment or replacement thereto) so long as any such
amendment or replacement agreement is not more disadvantageous to the Holders in
any material respect than the original agreement as in effect on July 22, 1998
or the date of this Indenture, as the case may be; (iv) Restricted Payments
permitted by this Indenture; (v) the payment of customary annual management,
consulting and advisory fees and related expenses to the Principals and their
Affiliates made pursuant to any financial advisory, financing, underwriting or
placement agreement or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures
which are approved by the Management Committee or such Restricted Subsidiary in
good faith; (vi) payments or loans to employees or consultants that are approved
by the
60
Management Committee in good faith; (vii) the existence of, or the performance
by Holdings or any of its Restricted Subsidiaries of its obligations under the
terms of, any securityholders agreement (including any registration rights
agreement or purchase agreement related thereto) to which it is a party as of
July 22, 1998 and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by Holdings or any
of its Restricted Subsidiaries of obligations under, any future amendment to any
such existing agreement or under any similar agreement entered into after July
22, 1998 shall only be permitted by this clause (vii) to the extent that the
terms of any such amendment or new agreement are not disadvantageous to the
Holders of Debentures in any material respect; (viii) transactions permitted by,
and complying with, the provisions of Section 5.01; (ix) transactions effected
as part of a Qualified Securitization Transaction; (x) transactions with
customers, clients, suppliers, or purchasers or sellers of goods or services, in
each case in the ordinary course of business and otherwise in compliance with
the terms of this Indenture which are fair to Holdings or its Restricted
Subsidiaries, in the reasonable determination of the Management Committee or the
senior management thereof, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party; and (xi)
any Affiliate Transaction with (A) a Principal or Related Party not in excess of
$1.0 million or (B) any other Person not in excess of $100,000.
SECTION 4.12 Liens.
Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Liens of any kind
against or upon any of its property or assets, or any proceeds therefrom, except
for Permitted Liens.
SECTION 4.13 Conduct of Business.
Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any businesses a majority of whose revenues are not
derived from the same or reasonably similar, ancillary or related to, or a
reasonable extension, development or expansion of, the businesses in which
Holdings and its Restricted Subsidiaries were engaged on July 22, 1998 or are
engaged as of the date hereof.
SECTION 4.14 Corporate Existence.
Subject to Article 5 hereof, Holdings shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of Holdings or any such Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of Holdings and
its Subsidiaries; provided, however, that Holdings shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Management Committee shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of Holdings and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the
Debentures.
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SECTION 4.15 REPURCHASE AT THE OPTION OF HOLDERS.
Upon the occurrence of a Change of Control, each Holder of Debentures
will have the right to require the Issuers to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Debentures pursuant
to the offer described below (the "Change of Control Offer") at an offer price
in cash (the "Change of Control Payment") equal to 101% of the Accreted Value
thereof on the date of repurchase (if such date of repurchase is prior to August
1, 2003) or 101% of the aggregate principal amount thereof (if such date of
repurchase is on or after August 1, 2003) plus, in each case, accrued and unpaid
interest thereon, if any, to the date of purchase. Within ten days following any
Change of Control, the Issuers will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Debentures on the date specified in such notice, which date shall
be no earlier than 30 days and no later than 60 days from the date such notice
is mailed (the "Change of Control Payment Date"), pursuant to the procedures
required by this Indenture and described in such notice. The Issuers will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Debentures
as a result of a Change of Control.
On the Change of Control Payment Date, the Issuers will, to the extent
lawful, (1) accept for payment all Debentures or portions thereof 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
Debentures or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Debentures so accepted together with an Officers'
Certificate stating the aggregate principal amount at maturity of Debentures or
portions thereof being purchased by the Issuers. The Paying Agent will promptly
mail to each Holder of Debentures so tendered the Change of Control Payment for
such Debentures, and the Trustee will promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Debenture equal in
principal amount at maturity to any unpurchased portion of the Debentures
surrendered, if any; provided that each such new Debenture will be in a
principal amount of $1,000 or an integral multiple thereof. The Issuers will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Change of Control provisions described above will be applicable
whether or not 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 Debentures to require that the
Issuers repurchase or redeem the Debentures in the event of a takeover,
recapitalization or similar transaction.
The Issuers 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
Issuers and purchases all Debentures validly tendered and not withdrawn under
such Change of Control Offer.
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SECTION 4.16 Sale Leaseback Transactions.
Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
Holdings or any of its Restricted Subsidiaries may enter into a sale and
leaseback transaction if (i) Holdings or such Restricted Subsidiary, as
applicable, could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction pursuant to
either (A) the Fixed Charge Coverage Ratio test set forth in the first paragraph
of Section 4.09 or (B) clause (ii) of Section 4.09 and (b) incurred a Lien to
secure such Indebtedness pursuant to Section 4.12, (ii) the gross cash proceeds
of such sale and leaseback transaction are at least equal to the fair market
value (as determined in good faith by the Management Committee and set forth in
an Officers' Certificate delivered to the Trustee) of the property that is the
subject of such sale and leaseback transaction and (iii) the transfer of assets
in such sale and leaseback transaction is permitted by, and Holdings applies the
proceeds of such transaction in compliance with Section 4.10.
ARTICLE 5.
SUCCESSORS
SECTION 5.01 Merger, Consolidation, or Sale of Assets.
Holdings shall not consolidate or merge with or into (whether or not
Holdings is the surviving corporation), or sell, assign, transfer, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions, to another corporation, Person or entity unless
(i) Holdings is the surviving corporation or the entity or the Person formed by
or surviving any such consolidation or merger (if other than Holdings) or to
which such sale, assignment, transfer, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia; (ii) the entity or
Person formed by or surviving any such consolidation or merger (if other than
Holdings) or the entity or Person to which such sale, assignment, transfer,
conveyance or other disposition shall have been made assumes all the obligations
of Holdings under the Debentures and this Indenture pursuant to supplemental
indentures in forms reasonably satisfactory to the Trustee; (iii) immediately
after such transaction no Default or Event of Default exists; and (iv) except in
the case of a merger of Holdings with or into a Wholly Owned Restricted
Subsidiary of Holdings and except in the case of a merger entered into solely
for the purpose of incorporating Holdings or reincorporating Holdings in another
jurisdiction, Holdings or the entity or Person formed by or surviving any such
consolidation or merger (if other than Holdings), or to which such sale,
assignment, transfer, conveyance or other disposition shall have been made will,
at the time of such transaction and after giving pro forma effect thereto as if
such transaction had occurred at the beginning of the applicable Four-Quarter
Period, be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Consolidated Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09. Holdings shall not, directly or indirectly, lease all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person. The provisions of this covenant will not be
applicable to a merger, sale, assignment, transfer, conveyance or other
disposition of assets between or among Holdings and any of its Restricted
Subsidiaries. Notwithstanding the foregoing, Holdings is permitted to reorganize
as a corporation in accordance with the procedures established in this Indenture
(and AC Holdings Corp. may thereafter liquidate); provided that Holdings shall
have
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delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that such reorganization (and, if
applicable, liquidation of AC Holdings Corp.) is not adverse to holders of the
Debentures from a U.S. federal tax standpoint (it being recognized that such
reorganization shall not be deemed adverse to the holders of the Debentures
solely because (i) of the accrual of deferred tax liabilities resulting from
such reorganization or (ii) the successor or surviving corporation (a) is
subject to income tax as a corporate entity or (b) is considered to be an
"includible corporation" of an affiliated group of corporations within the
meaning of the Code or any similar state or local law) and certain other
conditions are satisfied.
SECTION 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of Holdings in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which Holdings is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to Holdings), and may exercise every right and
power of Holdings under this Indenture with the same effect as if such successor
Person had been named as Holdings herein; provided, however, that the
predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Debentures except in the case of a sale of all
of Holdings' assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" occurs if:
(a) Holdings fails to pay interest on any Debentures when the same
becomes due and payable if the default continues for a period of 30 days;
(b) Holdings fails to pay the principal on any Debentures when such
principal becomes due and payable, at maturity, upon redemption or otherwise
(including the failure to make a payment to purchase Debentures tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer);
(c) Holdings or any of its Restricted Subsidiaries fails to comply
with the provisions of the covenants described in Section 4.10 or 4.15 hereof;
(d) Holdings defaults in the observance or performance of any other
covenant or agreement contained in this Indenture if the default continues for a
period of 30 days after the Issuers receive written notice specifying the
default (and demanding that such default be remedied) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Debentures;
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(e) Holdings fails to pay at final stated maturity (giving
effect to any extensions thereof) the principal amount of any Indebtedness of
Holdings or any Restricted Subsidiary (other than a Securitization Entity),
which failure continues for at least 10 days, or the acceleration of the
maturity of any such Indebtedness, which acceleration remains uncured and
unrescinded for at least 10 days, if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final maturity or which has been
accelerated, aggregates $10.0 million or more at any time;
(f) one or more judgments in an aggregate amount in excess of
$10.0 million shall have been rendered against the Issuers or any of their
Significant Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become final
and non appealable;
(g) Holdings or any of its Significant Subsidiaries or any group
of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against Holdings or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of Holdings or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or substantially all of
the property of Holdings or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary; or
(iii) orders the liquidation of Holdings or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; and the order or decree remains
unstayed and in effect for 60 consecutive days.
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SECTION 6.02 Acceleration.
If any Event of Default (other than an Event of Default specified in
clause (g) or (h) of Section 6.01 hereof with respect to the Issuers, any
Significant Subsidiary or any group of Significant Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of outstanding
Debentures may declare the principal of and accrued interest on all the
Debentures to be due and payable by notice in writing to the Issuers and the
Trustee specifying the respective Event of Default and that such notice is a
"notice of acceleration" (the "Acceleration Notice"), and the same shall become
immediately due and payable. If an Event of Default specified in clause (g) or
(h) of Section 6.01 occurs with respect to the Issuers, any of Holdings'
Significant Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, then such amount shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of Debentures.
At any time after a declaration of acceleration with respect to the
Debentures as described in the preceding paragraph, the Holders of a majority in
principal amount of Debentures may rescind and cancel such declaration and its
consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Issuers have paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clause (vi) of the description above of Events of Default, the Trustee shall
have received an Officers' Certificate and an Opinion of Counsel that such Event
of Default has been cured or waived. The holders of a majority in principal
amount of Debentures may waive any existing Default or Event of Default under
this Indenture, and its consequences, except a default in the payment of the
principal of or interest on any Debentures.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuers with
the intention of avoiding payment of the premium that the Issuers would have had
to pay if the Issuers then had elected to redeem the Debentures pursuant to
Section 3.07, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law upon the acceleration of the Debentures.
If an Event of Default occurs prior to August 1, 2003 by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuers with
the intention of avoiding the prohibition on redemption of the Debentures prior
to August 1, 2003, then the premium set forth below for each of the years
beginning on August 1 of such year shall also become immediately due and payable
to the extent permitted by law upon the acceleration of the Debentures
(expressed as a percentage of the Accreted Value of the Debentures on the date
of payment that would otherwise be due but for the provisions of this sentence):
PERCENTAGE OF
YEAR PRINCIPAL AMOUNT
---- ----------------
2002 ............................. 108.917%
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SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Debentures or to enforce the performance of any provision of the
Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Debenture in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Debentures by notice to the Trustee may on behalf of the
Holders of all of the Debentures waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of and premium, if any, or interest on, the
Debentures (including in connection with an offer to purchase) (provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding Debentures may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding
Debentures may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Debentures or that may
involve the Trustee in personal liability.
SECTION 6.06 Limitation on Suits.
A Holder of a Debenture may pursue a remedy with respect to this
Indenture or the Debentures only if:
(a) the Holder of a Debenture gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Debentures make a written request to the Trustee to pursue the
remedy;
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(c) such Holder of a Debenture or Holders of Debentures offer and,
if requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Debentures do not give the Trustee a
direction inconsistent with the request.
A Holder of a Debenture may not use this Indenture to prejudice the
rights of another Holder of a Debenture or to obtain a preference or priority
over another Holder of a Debenture.
SECTION 6.07 Rights of Holders of Debentures to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Debenture to receive payment of principal and premium, if any, and
interest on the Debenture, on or after the respective due dates expressed in the
Debenture (including in connection with an offer to purchase), or 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 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Issuers for the whole amount of
principal of and premium, if any, and interest remaining unpaid on the
Debentures and interest on overdue principal and, to the extent lawful, interest
and 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.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Debentures allowed in any judicial proceedings relative to the
Issuers (or any other obligor upon the Debentures), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian 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 to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any
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and all distributions, dividends, money, securities and other properties that
the Holders may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Debentures or the rights of any Holder,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Debentures for amounts due and unpaid on the
Debentures for principal and premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Debentures for principal and premium, if any and interest, respectively; and
Third: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Debentures pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Debenture pursuant to Section 6.07 hereof, or a suit by Holders of more than 10%
in principal amount of the then outstanding Debentures.
ARTICLE 7.
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (e) and (f) of this Section and Section 7.02.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any
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Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from Holdings shall be sufficient if signed
by an Officer of Holdings.
(f) 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 unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.01 hereof, the Trustee shall
have no duty to inquire as to the performance of Holding's covenants in Article
4 hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Sections 6.01(a), 6.01(b) and 4.01 or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge.
(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 may, in its discretion, 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 Holding personally or by agent or attorney.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Debentures and may otherwise deal with the Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Debentures, it shall not be
accountable for the Issuers' use of the proceeds from the Debentures or any
money paid to the Issuers or upon the Issuers' direction
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under any provision of this Indenture, it shall not be responsible for the use
or application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Debentures or any other document in connection with the sale of
the Debentures or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Debentures a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium, if
any, or interest on any Debenture, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Debentures.
SECTION 7.06 Reports by Trustee to Holders of the Debentures.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Debentures remain outstanding,
the Trustee shall mail to the Holders of the Debentures a brief report dated as
of such reporting date that complies with TIA (S) 313(a) (but if no event
described in TIA (S) 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA (S) 313(b)(2). The Trustee shall also transmit by mail all reports as
required by TIA (S) 313(c).
A copy of each report at the time of its mailing to the Holders of
Debentures shall be mailed to Holdings and filed with the SEC and each stock
exchange on which the Debentures are listed, if any, in accordance with TIA (S)
313(d). Holdings shall promptly notify the Trustee when the Debentures are
listed on any stock exchange.
SECTION 7.07 Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Issuers shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Issuers (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Issuers or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Issuers promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
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Issuers shall not relieve the Issuers of their obligations hereunder. The
Issuers shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Issuers shall pay the reasonable
fees and expenses of such counsel. The Issuers need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
The obligations of the Issuers under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Issuers' payment obligations in this Section, the Trustee
shall have a Lien prior to the Debentures on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Debentures. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA (S) 313(b)(2) to
the extent applicable.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Issuers. The Holders of Debentures
of a majority in principal amount of the then outstanding Debentures may remove
the Trustee by so notifying the Trustee and the Issuers in writing. The Issuers
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Debentures may appoint
a successor Trustee to replace the successor Trustee appointed by the Issuers.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or
the Holders of Debentures of at least 10% in principal amount of the then
outstanding Debentures may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Debenture who
has been a Holder of a Debenture for at least six months, fails to comply with
Section 7.10, such Holder of a Debenture may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Debentures. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuers' obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA
(S) 310(b).
SECTION 7.11 Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of the Management Committee evidenced by
a resolution set forth in an Officer's Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Debentures upon
compliance with the conditions set forth below in this Article Eight.
SECTION 8.02 Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuers shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Debentures on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Issuers shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Debentures, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Debentures and this Indenture (and the Trustee, on demand
of and at the expense of the Issuers, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Debentures to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest on such Debentures
when such payments are due, (b) the Issuers' obligations with respect to such
Debentures under Article 2 and Section 4.02 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Issuers'
obligations in connection therewith and (d) this Article Eight. Subject to
compliance with this Article Eight, the Issuers may exercise their option under
this Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 hereof.
SECTION 8.03 Covenant Defeasance.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuers shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15 and 4.16 hereof with respect to the outstanding
Debentures on and after the date the conditions set forth in Section 8.04 are
satisfied (hereinafter, "Covenant Defeasance"), and the Debentures shall
thereafter be deemed 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 such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Debentures shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding
Debentures, the Issuers may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by
75
reason of any reference in any such 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 6.01 hereof, but, except as specified above,
the remainder of this Indenture and such Debentures shall be unaffected thereby.
In addition, upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 hereof, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(d) through 6.01(f)
hereof shall not constitute Events of Default.
SECTION 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Debentures:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Debentures, cash in U.S. dollars,
non callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest on all outstanding Debentures on the stated maturity or on the
applicable redemption date, as the case may be, and the Issuers must specify
whether the Debentures are being defeased to maturity or to a particular
redemption date;
(b) in the case of an election under Section 8.02 hereof, the
Issuers shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Issuers have
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since July 22, 1998, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the outstanding
Debentures will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal 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 Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Issuers shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Debentures 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Debentures pursuant to this Article Eight
concurrently with such incurrence) or insofar as Sections 6.01(g) or 6.01(h)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;
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(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under any material
agreement or instrument (including this Indenture and the Credit Facilities) to
which Holdings or any of its Subsidiaries is a party or by which Holdings or any
of its Subsidiaries is bound;
(f) the Issuers shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Issuers shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuers with the intent
of preferring the Holders of Debentures over the other creditors of the Issuers
with the intent of defeating, hindering, delaying or defrauding creditors of the
Issuers or others; and
(h) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding
Debentures shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Debentures and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuers acting as Paying
Agent) as the Trustee may determine, to the Holders of such Debentures of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Debentures.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the request
of the Issuers any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
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SECTION 8.06 Repayment to Issuers.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of, premium, if any,
or interest on any Debenture and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Issuers on its request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Debenture shall thereafter,
as a secured creditor, look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuers 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 Issuers cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Issuers.
SECTION 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuers' obligations under this Indenture and the
Debentures shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; provided, however, that, if the Issuers make
any payment of principal of, premium, if any, or interest on any Debenture
following the reinstatement of their obligations, the Issuers shall be
subrogated to the rights of the Holders of such Debentures to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 Without Consent of Holders of Debentures.
Notwithstanding Section 9.02 of this Indenture, the Issuers and the
Trustee may amend or supplement this Indenture or the Debentures without the
consent of any Holder of Debentures:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(c) to provide for the assumption of the Issuer's obligations to
the Holders of the Debentures by a successor to the Issuers pursuant to Article
5 hereof;
78
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Debentures or that does not adversely affect the
legal rights under this Indenture of any such Holder; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
Upon the request of the Issuers accompanied by a resolution of the
Management Committee authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Issuers in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02 With Consent of Holders of Debentures.
Except as provided below in this Section 9.02, the Issuers and the
Trustee may amend or supplement this Indenture (including Sections 3.09, 4.10
and 4.15 hereof), the Debentures may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the Debentures then
outstanding voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Debentures), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Debentures, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Debentures may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Debentures voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Debentures).
Upon the request of the Issuers accompanied by a resolution of the
Management Committee authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Debentures as
aforesaid, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Issuers in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
directly affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Debentures
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuers shall mail to the Holders of Debentures affected thereby
a notice briefly describing the
79
amendment, supplement or waiver. Any failure of the Issuers to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental Indenture or waiver. Subject to
Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal
amount of the Debentures then outstanding voting as a single class may waive
compliance in a particular instance by the Issuers with any provision of this
Indenture or the Debentures. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Debentures held by a non-consenting Holder):
(a) reduce the principal amount of Debentures whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Debenture or alter or waive any of the provisions with respect to the redemption
of the Debentures, except as provided above with respect to Section 4.15 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Debenture;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Debentures (except a rescission of
acceleration of the Debentures by the Holders of at least a majority in
aggregate principal amount of the then outstanding Debentures and a waiver of
the payment default that resulted from such acceleration);
(e) make any Debenture payable in money other than that stated in
the Debentures;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Debentures to receive
payments of principal of or interest on the Debentures;
(g) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
SECTION 9.03 Compliance With Trust Indenture Act.
Every amendment or supplement to this Indenture or the Debentures shall
be set forth in a amended or supplemental Indenture that complies with the TIA
as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Debenture is a continuing consent by the Holder of a
Debenture and every subsequent Holder of a Debenture or portion of a Debenture
that evidences the same debt as the consenting Holder's Debenture, even if
notation of the consent is not made on any Debenture. However, any such Holder
of a Debenture or subsequent Holder of a Debenture may revoke the consent as to
its Debenture if the Trustee receives written notice of revocation before the
date the waiver,
80
supplement or amendment becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
SECTION 9.05 Notation On or Exchange of Debentures.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Debenture thereafter authenticated. The Issuers in
exchange for all Debentures may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Debentures that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Debenture shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Issuers
may not sign an amendment or supplemental Indenture until the Management
Committee approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 11.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA (S) 318(c), the imposed duties shall control.
SECTION 10.02 Notices.
Any notice or communication by the Issuers or the Trustee to the others
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address
If to the Issuers:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P.
d/b/a ▇▇▇▇▇ ▇▇▇▇▇ Works, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investor Services
81
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citigroup Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
If to the Trustee:
US Bank National Association Corporate Trust Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Specialized Finance, 4th Floor
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Issuers or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA (S) 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, it shall mail
a copy to the Trustee and each Agent at the same time.
SECTION 10.03 Communication by Holders of Debentures With Other Holders of
Debentures.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders
with respect to their rights under this Indenture or the Debentures. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection of
TIA (S) 312(c).
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SECTION 10.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 10.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
(a) a statement that the Person 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;
(c) a statement that, in the opinion of such Person, he or she 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
satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07 No Personal Liability of Partners, Directors, Officers, Employees
and Equityholders.
No partner, director, officer, employee, incorporator or equityholder
of the Issuers, as such, or any of such persons' Affiliates, as such, shall have
any liability for any obligations of the Issuers under the Debentures or this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Debentures by accepting a
Debenture waives and releases all such liability. The waiver and release are
part of the
83
consideration for issuance of the Debentures. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
SECTION 10.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE DEBENTURES AND THE SUBSIDIARY GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of Holdings or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 10.10 Successors.
All agreements of the Issuers in this Indenture and the Debentures
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 10.11 Severability.
In case any provision in this Indenture or in the Debentures 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 10.12 Counterpart 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.
SECTION 10.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
84
SIGNATURES
Dated as of May [ ], 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, Inc.,
its General Partner
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital
Corporation
By: _____________________________
Name:
Title:
U.S. Bank National Association
By: _____________________________
Name:
Title:
▇▇
▇▇▇▇▇▇▇ ▇-▇
(▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
================================================================================
(a) CUSIP/CINS
12 3/8% Senior Discount Debentures due 2009
No.__ $_______
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation
promises to pay to______________________________________________________________
or registered assigns,
the principal sum of _________________________________________________
Dollars on February 1, 2009.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15, and July 15
Dated May [__], 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
By: ACR Management, LLC, its
general partner
By:______________________________ By:______________________________
Name: Name:
Title: Title:
(SEAL) (SEAL)
This is one of the Global
Debentures referred to in the
within-mentioned Indenture:
U.S. Bank National Association,
as Trustee
By:________________________________
================================================================================
86
(Back of Debenture)
12 3/8% Senior Discount Debentures due 2009
THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS DEBENTURE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL
DEBENTURE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL DEBENTURE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
DEBENTURE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE ISSUERS.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P., a Pennsylvania
limited partnership ("Holdings"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital
Corporation, a Delaware corporation ("AC Holdings Corp." and, together with
Holdings, the "Issuers"), promise to pay interest on the principal amount of
this Debenture semi-annually on February 1 and August 1 of each year in the
manner set forth in this Debenture. Interest on this Debenture accruing through
and including the February 1, 2004 interest payment date will not be paid in
cash but will accrete as additional principal at a rate of 16 3/8% per annum.
All interest accruing on this Debenture after February 1, 2004 shall be payable
in cash and shall accrue at a rate of 12 3/8% per annum. If any such day is not
a Business Day, on the next succeeding Business Day (each, an "Interest Payment
Date")), commencing on February 1, 2004, to Holders of record on the immediately
preceding January 15 and July 15. Interest on the Debentures will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from August 1, 2003. The Issuers 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 at a rate that is 1%
per annum in excess of the rate then in effect; 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 lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Issuers will pay interest on the Debentures
(except defaulted interest) to the Persons who are registered Holders of
Debentures at the close of business on the January 15 or July 15 next preceding
the Interest Payment Date, even if such Debentures are cancelled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Debentures
will be payable as to principal, premium, if any, and interest at the office or
agency of Holdings maintained for such purpose within or without the City and
State of New York, or,
87
at the option of Holdings, payment of interest may be made by check mailed to
the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest and premium on, all Global
Debentures and all other Debentures the Holders of which shall have provided
wire transfer instructions to Holdings or the Paying Agent. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. Holdings may change any Paying Agent or Registrar without notice to
any Holder. Holdings or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Issuers issued the Debentures under an Indenture
dated as of May [__], 2003 (the "Indenture") among the Issuers and the Trustee.
The terms of the Debentures include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Debentures are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Debenture conflicts
with the express provisions of the Indenture, the provisions of the indenture
shall govern and be controlling. The Debentures are obligations of Holdings
limited to $48.0 million in aggregate principal amount.
5. Optional Redemption.
(a) Except as set forth below, the Debentures will not be redeemable at
the Issuers' option prior to August 1, 2003. Thereafter, the Debentures will be
subject to redemption at any time at the option of the Issuers, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on August 1 of the years
indicated below:
PERCENTAGE OF
YEAR PRINCIPAL AMOUNT
---- ----------------
2003 ....................................... 106.688%
2004 ....................................... 104.458%
2005 ....................................... 102.229%
2006 and thereafter ........................ 100.000%
(b) Notwithstanding the foregoing, at any time prior to [__], 2006, the
Issuers may on any one or more occasions redeem up to 35% of the aggregate
principal amount at maturity of Debentures originally issued under the Indenture
at a redemption price of 112.375% of the Accreted Value thereof (as determined
on the redemption date) to the redemption date, with the net cash proceeds of
any Equity Offerings; provided that at least 65% of the aggregate principal
amount at maturity of Debentures originally issued remain outstanding
immediately after the occurrence of such redemption (excluding Debentures held
by Holdings and its Subsidiaries);
88
and provided further that such redemption shall occur within 120 days of the
date of the closing of any such Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Issuers shall not be
required to make mandatory redemption payments with respect to the Debentures.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, Holdings 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 Debentures at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of purchase (the
"Change of Control Payment"). Within 10 days following any Change of Control,
Holdings shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.
(b) If Holdings or a Subsidiary consummates any Asset Sales, within 25
days of each date on which the aggregate amount of Net Proceeds Offer Amount
exceeds $10 million, Holdings shall commence an offer to all Holders of
Debentures ("Net Proceeds Offer") pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Debentures that may be purchased out of
the Net Proceeds Offer Amount at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid interest thereon,
if any, to the date fixed for the closing of such offer, in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate amount
of Debentures tendered pursuant to a Net Proceeds Offer is less than the Net
Proceeds Offer Amount, Holdings (or such Subsidiary) may use such deficiency for
general corporate purposes. If the aggregate principal amount of Debentures
surrendered by Holders thereof exceeds the amount of Net Proceeds Offer Amount,
the Trustee shall select the Debentures to be purchased on a pro rata basis.
Holders of Debentures that are the subject of an offer to purchase will receive
an Net Proceeds Offer from Holdings prior to any related purchase date and may
elect to have such Debentures purchased by completing the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Debentures.
8. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Debentures are to be redeemed at its registered address. Debentures in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Debentures held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Debentures or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Debentures are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Debentures may be registered and Debentures may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and Holdings may require a Holder to pay any taxes and
89
fees required by law or permitted by the Indenture. Holdings need not exchange
or register the transfer of any Debenture or portion of a Debenture selected for
redemption, except for the unredeemed portion of any Debenture being redeemed in
part. Also, Holdings need not exchange or register the transfer of any
Debentures for a period of 15 days before a selection of Debentures to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Debenture may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Debentures may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Debentures voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Debentures may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Debentures voting as a single class. Without the consent of any
Holder of a Debenture, the Indenture or the Debentures may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Debentures in addition to or in place of certificated Debentures,
to provide for the assumption of Holdings' obligations to Holders of the
Debentures in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Debentures or
that does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act.
12. Defaults and Remedies. Events of Default include: (i) Holdings
fails to pay interest on any Debentures when the same becomes due and payable if
the default continues for a period of 30 days, (ii) Holdings fails to pay the
principal on any Debentures when such principal becomes due and payable, at
maturity, upon redemption or otherwise (including the failure to make a payment
to purchase Debentures tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer), (iii) Holdings or any of its Restricted Subsidiaries fails to
comply with the provisions of the covenants described in Section 4.10 or 4.15 of
the Indenture, (iv) Holdings defaults in the observance or performance of any
other covenant or agreement contained in the Indenture if the default continues
for a period of 30 days after the Issuers receive written notice specifying the
default (and demanding that such default be remedied) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Debentures,
(v) Holdings fails to pay at final stated maturity (giving effect to any
extensions thereof) the principal amount of any Indebtedness of Holdings or any
Restricted Subsidiary (other than a Securitization Entity), which failure
continues for at least 10 days, or the acceleration of the maturity of any such
Indebtedness, which acceleration remains uncured and unrescinded for at least 10
days, if the aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal at final maturity or which has been accelerated, aggregates $10.0
million or more at any time, (vi) certain final judgments for the payment of
money that remain undischarged for a period of 60 days, and (vii) certain events
of bankruptcy or insolvency with respect to Holdings or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Debentures may declare all the Debentures to be due and
90
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding
Debentures will become due and payable without further action or notice. Holders
may not enforce the Indenture or the Debentures except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Debentures may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of the Debentures
notice of any continuing Default or Event of Default (except a Default or Event
of Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Debentures then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Debentures waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Debentures. Holdings is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and Holdings is
required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
13. Trustee Dealings with Holdings. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for Holdings or its Affiliates, and may otherwise deal with Holdings or
its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A partner, director, officer, employee,
incorporator or equityholder, of Holdings, as such, shall not have any liability
for any obligations of the Issuers under the Debentures or the Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Debenture waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Debentures.
15. Authentication. This Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. 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).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, Holdings has caused
CUSIP numbers to be printed on the Debentures and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Debentures
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
91
Holdings will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P.
d/b/a ▇▇▇▇▇ ▇▇▇▇▇ Works, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investor Services
92
ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign and
transfer this Debenture 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 Debenture on the books of the Issuers. The agent may substitute
another to act for him.
________________________________________________________________________________
Date:____________
Your Signature:_______________________
(Sign exactly as your name appears on
the face of this Debenture)
SIGNATURE GUARANTEE.
93
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the Issuers
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Debenture purchased by
the Issuers pursuant to Section 4.10 or Section 4.15 of the Indenture, state
the amount you elect to have purchased: $________
Date: __________ Your Signature:______________________
(Sign exactly as your name appears on
the Debenture)
Tax Identification No:________________
Signature Guarantee.
94
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL DEBENTURE
The following exchanges of a part of this Global Debenture for an
interest in another Global Debenture or for a Certificated Debenture, or
exchanges of a part of another Global Debenture or Certificated Debenture for an
interest in this Global Debenture, have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Debenture Signature of authorized
Principal Amount of Principal Amount of following such officer of Trustee in
Date of Exchange this Global Debenture this Global Debenture decrease (or increase) Note Custodian
------------------ ----------------------- ----------------------- ------------------------ -------------------------
95
EXHIBIT A-2
(Face of Regulation S Temporary Global Debenture)
================================================================================
(b) CUSIP/CINS_______________________
12 3/8% Senior Discount Debentures due 2009
No.____ $______
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation
promises to pay to ____________________________________________________________
or registered assigns,
the principal sum of _________________________________________________
Dollars on February 1, 2009.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Dated May [__], 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
By: ACR Management, LLC, its
general partner
By:______________________________ By:______________________________
Name: Name:
Title: Title:
(SEAL) (SEAL)
This is one of the Global
Debentures referred to in the
within-mentioned Indenture:
U.S. Bank National Association,
as Trustee
By:_____________________
96
(Back of Regulation S Temporary Global Debenture)
12 3/8% Senior Discount Debentures due 2009
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL DEBENTURE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED DEBENTURES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL DEBENTURE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN
DEFINITIVE FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"),
TO HOLDINGS OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P., a Pennsylvania
limited partnership ("Holdings"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital
Corporation, a Delaware corporation ("AC Holdings Corp." and, together with
Holdings, the "Issuers"), promise to pay interest on the principal amount of
this Debenture semi-annually on February 1 and August 1 of each year in the
manner set forth in this Debenture. Interest on this Debenture accruing through
and including the February 1, 2004 interest payment date will not be paid in
cash but will accrete as additional principal at a rate of 16 3/8% per annum.
All interest accruing on this Debenture after February 1, 2004 shall be payable
in cash and shall accrue at a rate of 12 3/8% per annum. If any such day is not
a Business Day, on the next succeeding Business Day (each, an "Interest Payment
Date")), commencing on February 1, 2004, to Holders of record on the immediately
preceding January 15 and July 15. Interest on the Debentures will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from August 1, 2003. The Issuers 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 at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of
97
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Debenture is exchanged for one
or more Regulation S Permanent Global Debentures, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Debenture shall in all other respects be
entitled to the same benefits as other Senior Subordinated Debentures under the
Indenture.
2. Method of Payment. The Issuers will pay interest on the Debentures
(except defaulted interest) to the Persons who are registered Holders of
Debentures at the close of business on the January 15 or July 15 next preceding
the Interest Payment Date, even if such Debentures are cancelled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Debentures
will be payable as to principal, premium and interest at the office or agency of
Holdings maintained for such purpose within or without the City and State of New
York, or, at the option of Holdings, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest and premium on, all Global
Debentures and all other Debentures the Holders of which shall have provided
wire transfer instructions to Holdings or the Paying Agent. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. Holdings may change any Paying Agent or Registrar without notice to
any Holder. Holdings or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Issuers issued the Debentures under an Indenture
dated as of May [__], 2003 (the "Indenture") among the Issuers and the Trustee.
The terms of the Debentures include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Debentures are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Debentures are secured obligations of Holdings
limited to $48.0 million in aggregate principal amount.
5. Optional Redemption.
(a) Except as provided below, the Debentures will not be redeemable at
the Issuers' option prior to August 1, 2003. Thereafter, the Debentures will be
subject to redemption at any time at the option of the Issuers, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on August 1 of the years
indicated below:
98
PERCENTAGE OF
YEAR PRINCIPAL AMOUNT
---- ----------------
2003 ....................................... 106.688%
2004 ....................................... 104.458%
2005 ....................................... 102.229%
2006 and thereafter ........................ 100.000%
(b) Notwithstanding the foregoing, at any time prior to [__], 2006, the
Issuers may on any one or more occasions redeem up to 35% of the aggregate
principal amount at maturity of Debentures originally issued under the Indenture
at a redemption price of 112.375% of the Accreted Value thereof (as determined
on the redemption date) to the redemption date, with the net cash proceeds of
any Equity Offerings; provided that at least 65% of the aggregate principal
amount at maturity of Debentures originally issued remain outstanding
immediately after the occurrence of such redemption (excluding Debentures held
by Holdings and its Subsidiaries); and provided further that such redemption
shall occur within 120 days of the date of the closing of any such Equity
Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Issuers shall not be
required to make mandatory redemption payments with respect to the Debentures.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, Holdings 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 Debentures at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase (the "Change of
Control Payment"). Within 10 days following any Change of Control, Holdings
shall mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.
(b) If Holdings or a Subsidiary consummates any Asset Sales, within 25
days of each date on which the aggregate amount of Net Proceeds Offer Amount
exceeds $10 million, Holdings shall commence an offer to all Holders of
Debentures ("Net Proceeds Offer") pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Debentures that may be purchased out of
the Net Proceeds Offer Amount at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid interest thereon,
if any, to the date fixed for the closing of such offer, in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate amount
of Debentures tendered pursuant to a Net Proceeds Offer is less than the Net
Proceeds Offer Amount, Holdings (or such Subsidiary) may use such deficiency for
general corporate purposes. If the aggregate principal amount of Debentures
surrendered by Holders thereof exceeds the amount of Net Proceeds Offer Amount,
the Trustee shall select the Debentures to be purchased on a pro rata basis.
Holders of Debentures that are the subject of an offer to purchase will receive
an Net Proceeds Offer from Holdings prior to any related purchase date and may
elect to have such Debentures purchased by
99
completing the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Debentures.
8. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Debentures are to be redeemed at its registered address. Debentures in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Debentures held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Debentures or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Debentures are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Debentures may be registered and Debentures may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and Holdings may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. Holdings need not exchange or
register the transfer of any Debenture or portion of a Debenture selected for
redemption, except for the unredeemed portion of any Debenture being redeemed in
part. Also, it need not exchange or register the transfer of any Debentures for
a period of 15 days before a selection of Debentures to be redeemed or during
the period between a record date and the corresponding Interest Payment Date.
This Regulation S Temporary Global Debenture is exchangeable in whole
or in part for one or more Global Debentures only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Debenture for one or more Global
Debentures, the Trustee shall cancel this Regulation S Temporary Global
Debenture.
10. Persons Deemed Owners. The registered Holder of a Debenture may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Debentures may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Debentures, and any existing default or compliance with any
provision of the Indenture or the Debentures may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding
Debentures. Without the consent of any Holder of a Debenture, the Indenture or
the Debentures may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Debentures in addition to or in
place of certificated Debentures, to provide for the assumption of Holdings'
obligations to Holders of the Debentures in case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to the
Holders of the Debentures or that does not adversely affect the legal rights
under the Indenture of any such Holder, or to comply with the requirements of
the Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
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12. Defaults and Remedies. Events of Default include: (i) Holdings
fails to pay interest on any Debentures when the same becomes due and payable if
the default continues for a period of 30 days, (ii) Holdings fails to pay the
principal on any Debentures when such principal becomes due and payable, at
maturity, upon redemption or otherwise (including the failure to make a payment
to purchase Debentures tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer), (iii) Holdings or any of its Restricted Subsidiaries fails to
comply with the provisions of the covenants described in Section 4.10 or 4.15 of
the Indenture, (iv) Holdings defaults in the observance or performance of any
other covenant or agreement contained in the Indenture if the default continues
for a period of 30 days after the Issuers receive written notice specifying the
default (and demanding that such default be remedied) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Debentures,
(v) Holdings fails to pay at final stated maturity (giving effect to any
extensions thereof) the principal amount of any Indebtedness of Holdings or any
Restricted Subsidiary (other than a Securitization Entity), which failure
continues for at least 10 days, or the acceleration of the maturity of any such
Indebtedness, which acceleration remains uncured and unrescinded for at least 10
days, if the aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal at final maturity or which has been accelerated, aggregates $10.0
million or more at any time, (vi) certain final judgments for the payment of
money that remain undischarged for a period of 60 days, and (vii) certain events
of bankruptcy or insolvency with respect to Holdings or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Debentures may declare all the Debentures to be due and payable. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Debentures will become due and payable
without further action or notice. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Debentures may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Debentures notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the
Debentures then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Debentures waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Debentures.
Holdings is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and Holdings is required upon becoming aware of
any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. Trustee Dealings with Holdings. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for Holdings or its Affiliates, and may otherwise deal with Holdings or
its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A partner, director, officer, employee,
incorporator or equityholder, of the Issuers, as such, shall not have any
liability for any obligations of the Issuers under the Debentures or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debenture waives and
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releases all such liability. The waiver and release are part of the
consideration for the issuance of the Debentures.
15. Authentication. This Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. 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).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, Holdings has caused
CUSIP numbers to be printed on the Debentures and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Debentures
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
Holdings will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P.
d/b/a ▇▇▇▇▇ ▇▇▇▇▇ Works, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investor Services
102
ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign and
transfer this Debenture 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 Debenture on the books of the Issuers. The agent may substitute
another to act for him.
________________________________________________________________________________
Date:____________
Your Signature:__________________
(Sign exactly as your name appears on
the face of this Debenture)
Signature Guarantee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the Issuers
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Debenture purchased by
the Issuers pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $___________
Date: __________ Your Signature:______________________
(Sign exactly as your name appears on
the Debenture)
Tax Identification No:__________________
Signature Guarantee.
104
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL DEBENTURE
The following exchanges of a part of this Regulation S Temporary Global
Debenture for an interest in another Global Debenture, or of other Restricted
Global Debentures for an interest in this Regulation S Temporary Global
Debenture, have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Debenture Signature of authorized
Principal Amount of Principal Amount of following such officer of Trustee in
Date of Exchange this Global Debenture this Global Debenture decrease (or increase) Debenture Custodian
------------------ ----------------------- ----------------------- ------------------------ -------------------------
105
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation
d/b/a ▇▇▇▇▇ ▇▇▇▇▇ Works, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investor Services
[Registrar address block]
Re: 12 3/8% Senior Discount Debentures due 2009
Reference is hereby made to the Indenture, dated as of May [__], 2003
(the "Indenture"), between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Holdings Capital Corporation, as issuers (the "Issuers"), and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Debenture[s] or interest in such Debenture[s] specified in Annex A hereto, in
the principal amount of $___________ in such Debenture[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in the
Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or a Certificated Debenture pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Certificated Debenture is being transferred to a Person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest or Certificated Debenture for its own account, or for one or
more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Certificated Debenture will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or the Certificated Debenture and in the
Indenture and the Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in the
Temporary Regulation S Global Debenture, the Regulation S Global Debenture or a
Certificated
106
Debenture pursuant to Regulation S. The Transfer is being effected pursuant to
and inaccordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Distribution Compliance Period, the transfer
is not being made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Certificated Debenture will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Debenture, the Temporary Regulation S Global Debenture
and/or the Certificated Debenture and in the Indenture and the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Debenture or a Certificated Debenture pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Debentures and
Restricted Certificated Debentures and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to Holdings or a subsidiary
thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Debenture or Restricted Certificated Debentures and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the
107
form of Exhibit D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Debentures at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Certificated Debenture will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Debenture and/or the Certificated Debentures and in the Indenture
and the Securities Act.
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Debenture or of an Unrestricted Certificated Debenture.
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Certificated
Debenture will no longer be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Debentures, on
Restricted Certificated Debentures and in the Indenture.
(b) [_] Check if Transfer is pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Debenture will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Debentures, on Restricted Certificated Debentures and in the Indenture.
(c) [_] Check if Transfer is pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Debenture will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Debentures or Restricted Certificated Debentures and in the Indenture.
108
This certificate and the statements contained herein are made for your
benefit and the benefit of Holdings.
___________________________________
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated:_____, ____
109
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] Rule 144A Global Debenture (CUSIP _________), or
(ii) [_] Regulation S Global Debenture (CUSIP _________), or
(iii) [_] IAI Global Debenture (CUSIP ________); or
(b) [_] a Restricted Certificated Debenture.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] Rule 144A Global Debenture (CUSIP ________), or
(ii) [_] Regulation S Global Debenture (CUSIP ________), or
(iii) [_] IAI Global Debenture (CUSIP ________); or
(iv) [_] Unrestricted Global Debenture (CUSIP ________); or
(b) [_] a Restricted Certificated Debenture; or
(c) [_] an Unrestricted Certificated Debenture,
in accordance with the terms of the Indenture.
110
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation
d/b/a ▇▇▇▇▇ ▇▇▇▇▇ Works, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investor Services
[Registrar address block]
Re 12 3/8% Senior Discount Debentures due 2009
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of May [__], 2003
(the "Indenture"), among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Holdings Capital Corporation, as issuers (the "Issuers"), and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the
Debenture[s] or interest in such Debenture[s] specified herein, in the principal
amount of $____________ in such Debenture[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED CERTIFICATED DEBENTURES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL DEBENTURE FOR UNRESTRICTED CERTIFICATED DEBENTURES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL DEBENTURE
(a) [_] Check if exchange is from beneficial interest in a Restricted
Global Debenture to beneficial interest in an Unrestricted Global --Debenture.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Debenture for a beneficial interest in an Unrestricted Global
Debenture in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Debentures and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Debenture is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) [_] Check if exchange is from beneficial interest in a Restricted
Global Debenture to Unrestricted Certificated Debenture. In connection with the
Exchange of the
111
Owner's beneficial interest in a Restricted Global Debenture for an Unrestricted
Certificated Debenture, the Owner hereby certifies (i) the Certificated
Debenture is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Debentures and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Certificated Debenture is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [_] Check if exchange is from Restricted Certificated Debenture to
beneficial interest in an Unrestricted Global Debenture. In connection with the
Owner's Exchange of a Restricted Certificated Debenture for a beneficial
interest in an Unrestricted Global Debenture, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Certificated Debentures and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(d) [_] Check if exchange is from Restricted Certificated Debenture to
Unrestricted Certificated Debenture. In connection with the Owner's Exchange of
a Restricted Certificated Debenture for an Unrestricted Certificated Debenture,
the Owner hereby certifies (i) the Unrestricted Certificated Debenture is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Certificated Debentures and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Certificated
Debenture is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED CERTIFICATED DEBENTURES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL DEBENTURES FOR RESTRICTED CERTIFICATED DEBENTURES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL DEBENTURES
(a) [_] Check if exchange is from beneficial interest in a Restricted
Global Debenture to Restricted Certificated Debenture. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Debenture for
a Restricted Certificated Debenture with an equal principal amount, the Owner
hereby certifies that the Restricted Certificated Debenture is being acquired
for the Owner's own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Certificated Debenture issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Certificated Debenture and in the Indenture and the Securities Act.
112
(b) [_] Check if exchange is from Restricted Certificated Debenture to
beneficial interest in a Restricted Global Debenture. In connection with the
Exchange of the Owner's Restricted Certificated Debenture for a beneficial
interest in the [CHECK ONE] " Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, " Regulation S Global
Debenture, " IAI Global Debenture with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Debentures and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the relevant Restricted Global Debenture and in the Indenture and the Securities
Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of Holdings.
__________________________________
[Insert Name of Owner]
By: _____________________________
Name:
Title:
Dated: ________________, ____
113
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation
d/b/a ▇▇▇▇▇ ▇▇▇▇▇ Works, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investor Services
[Registrar address block]
Re: 12 3/8% Senior Discount Debentures due 2009
Reference is hereby made to the Indenture, dated as of May [__], 2003
(the "Indenture"), among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Holdings Capital Corporation, as issuers (the "Issuers"), and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Debenture, or
(b) [_] a Certificated Debenture,
we confirm that:
1. We understand that any subsequent transfer of the Debentures or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Debentures or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Debentures have not
been registered under the Securities Act, and that the Debentures and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Debentures or any
interest therein, we will do so only (A) to Holdings or any subsidiary thereof,
(B) in accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (c) to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you and to Holdings a signed
letter substantially in the form of this letter and, if such transfer is in
respect of a principal amount of Debentures, at the time of transfer of less
than $250,000, an Opinion of
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Counsel in form reasonably acceptable to Holdings to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Certificated Debenture or
beneficial interest in a Global Debenture from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Debentures or
beneficial interest therein, we will be required to furnish to you and Holdings
such certifications, legal opinions and other information as you and Holdings
may reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Debentures purchased by
us will bear a legend to the foregoing effect. We further understand that any
subsequent transfer by us of the Debentures or beneficial interest therein
acquired by us must be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Debentures, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Debentures or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and Holdings 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.
_____________________________________
[Insert Name of Accredited Investor]
By:_______________________________
Name:
Title:
Dated: _______________, ____
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