OSHKOSH TRUCK CORPORATION, as Issuer
and
THE SUBSIDIARY GUARANTORS (defined herein)
and
FIRSTAR TRUST COMPANY, as Trustee
________________________
INDENTURE
Dated as of February 26, 1998
up to $150,000,000
8-3/4% SENIOR SUBORDINATED NOTES DUE 2008
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1) 7.10 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.03; 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 13.03
(c) 13.03
313 (a) 7.06
(b)(1) 7.06
(b)(2) 7.06; 7.07
(c) 7.06;13.02
(d) 7.06
314 (a) 4.03;13.05
(b) N.A.
(c)(1) 13.04
(c)(2) 13.04
(c)(3) N.A.
(d) N.A.
(e) 13.05
(f) N.A.
315 (a) 7.01
(b) 7.05,13.02
(c) 7.01
(d) 7.01
(e) 6.11
316 (a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.13
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318 (a) 13.01
(b) N.A.
(c) 13.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . 1
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. OTHER DEFINITIONS. . . . . . . . . . . . . . . . . 18
SECTION 1.03. TIA DEFINITIONS. . . . . . . . . . . . . . . . . . 19
SECTION 1.04. RULES OF CONSTRUCTION. . . . . . . . . . . . . . . 19
ARTICLE 2. THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.01.FORM AND DATING. . . . . . . . . . . . . . . . . . 20
SECTION 2.02. EXECUTION AND AUTHENTICATION. . . . . . . . . . . 20
SECTION 2.03. REGISTRAR AND PAYING AGENT. . . . . . . . . . . . 21
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. . . . . . . . 21
SECTION 2.05. HOLDER LISTS. . . . . . . . . . . . . . . . . . . . 21
SECTION 2.06. TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . 22
SECTION 2.07. REPLACEMENT NOTES . . . . . . . . . . . . . . . . 34
SECTION 2.08. OUTSTANDING NOTES. . . . . . . . . . . . . . . . . 34
SECTION 2.09. TREASURY NOTES. . . . . . . . . . . . . . . . . . 34
SECTION 2.10. TEMPORARY NOTES . . . . . . . . . . . . . . . . . 35
SECTION 2.11. CANCELLATION. . . . . . . . . . . . . . . . . . . 35
SECTION 2.12. DEFAULTED INTEREST. . . . . . . . . . . . . . . . 35
ARTICLE 3. REDEMPTION AND PREPAYMENT . . . . . . . . . . . . . . . . . 35
SECTION 3.01. NOTICES TO TRUSTEE . . . . . . . . . . . . . . . . 35
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. . . . . . . . . 36
SECTION 3.03. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . 36
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . 37
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . 37
SECTION 3.06. NOTES REDEEMED IN PART. . . . . . . . . . . . . . 37
SECTION 3.07. OPTIONAL REDEMPTION. . . . . . . . . . . . . . . . 37
SECTION 3.08. MANDATORY REDEMPTION. . . . . . . . . . . . . . . 38
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS
PROCEEDS. . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 4. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.01. PAYMENT OF NOTES. . . . . . . . . . . . . . . . . 40
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . 40
SECTION 4.03. REPORTS. . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.04. COMPLIANCE CERTIFICATE. . . . . . . . . . . . . . 41
SECTION 4.05. TAXES. . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.06. STAY, EXTENSION AND USURY LAWS. . . . . . . . . . 42
SECTION 4.07. RESTRICTED PAYMENTS. . . . . . . . . . . . . . . . 42
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES. . . . . . . . . . . . . . 45
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK. . . . . . . . . . . . . . . . . . 46
SECTION 4.10. ASSET SALES . . . . . . . . . . . . . . . . . . . 49
SECTION 4.11. TRANSACTIONS WITH AFFILIATES. . . . . 50
SECTION 4.12. LIENS. . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.13. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . 51
SECTION 4.14. LINE OF BUSINESS. . . . . . . . . . . . . . . . . 51
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL . . . . 51
SECTION 4.16. NO SENIOR SUBORDINATED DEBT . . . . . . . . . . . . 52
SECTION 4.17. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS . . . 53
SECTION 4.18. LIMITATION ON ISSUANCES AND SALES OF EQUITY
INTERESTS IN WHOLLY OWNED RESTRICTED
SUBSIDIARIES . . . . . . . . . . . . . . . . . . . 53
SECTION 4.19. PAYMENTS FOR CONSENT . . . . . . . . . . . . . . . 53
SECTION 4.20. ADDITIONAL SUBSIDIARY GUARANTEES . . . . . . . . . 53
ARTICLE 5. SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS . . . . . 54
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . 54
ARTICLE 6. DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . 55
SECTION 6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . 55
SECTION 6.02. ACCELERATION . . . . . . . . . . . . . . . . . . . 56
SECTION 6.03. OTHER REMEDIES . . . . . . . . . . . . . . . . . 57
SECTION 6.04. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . 57
SECTION 6.05. CONTROL BY MAJORITY . . . . . . . . . . . . . . . 58
SECTION 6.06. LIMITATION ON SUITS . . . . . . . . . . . . . . . 58
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT . 58
SECTION 6.08. COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . 59
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . 59
SECTION 6.10. PRIORITIES . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.11. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . 60
ARTICLE 7. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.01. DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . 60
SECTION 7.02. RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . 61
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . 61
SECTION 7.04. TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . 62
SECTION 7.05. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . 62
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES . . . . 62
SECTION 7.07. COMPENSATION AND INDEMNITY . . . . . . . . . . . . 62
SECTION 7.08. REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . 63
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC . . . . . . . . . 64
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION . . . . . . . . . . . 64
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE 8. .LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . 65
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE . . . . . . . . . . 65
SECTION 8.03. COVENANT DEFEASANCE . . . . . . . . . . . . . . . . 65
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE . . . . 66
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS . . . 67
SECTION 8.06. REPAYMENT TO COMPANY . . . . . . . . . . . . . . . 67
SECTION 8.07. REINSTATEMENT . . . . . . . . . . . . . . . . . . . 68
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . . . . . . . 68
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES . . . . . . . . 68
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES . . . . . . . . . 69
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT . . . . . . . . 70
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS . . . . . . . . . 70
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES . . . . . . . . . 71
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC . . . . . . . . . . 71
ARTICLE 10. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.01. AGREEMENT TO SUBORDINATE . . . . . . . . . . . . . 71
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY . . . . . . . 71
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT . . . . . . . 72
SECTION 10.04. ACCELERATION OF SECURITIES . . . . . . . . . . . . 73
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER . . . . . . . 73
SECTION 10.06. NOTICE BY COMPANY . . . . . . . . . . . . . . . . 73
SECTION 10.07. SUBROGATION . . . . . . . . . . . . . . . . . . . 73
SECTION 10.08. RELATIVE RIGHTS . . . . . . . . . . . . . . . . . 74
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY . . . 74
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE . . . . . 74
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT . . . . . . . . 75
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION . . . . . . 75
SECTION 10.13. AMENDMENTS . . . . . . . . . . . . . . . . . . . . 75
ARTICLE 11. SUBSIDIARY GUARANTEES . . . . . . . . . . . . . . . . . . . 75
SECTION 11.01. GUARANTEE . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.02. SUBORDINATION OF SUBSIDIARY GUARANTEE . . . . . . 76
SECTION 11.03. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY . . 76
SECTION 11.04. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE . . 77
SECTION 11.05. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC.,
ON CERTAIN TERMS . . . . . . . . . . . . . . . . 77
SECTION 11.06. RELEASES FOLLOWING SALE OF ASSETS . . . . . . . . 78
ARTICLE 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 12.01. TRUST INDENTURE ACT CONTROLS . . . . . . . . . . . 79
SECTION 12.02. NOTICES . . . . . . . . . . . . . . . . . . . . . 79
SECTION 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES . . . . . . . . . . . . . . . . . 80
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT . . . . . . . . . . . . . . . . . . . . 80
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION . . . . . . . . . . . . . . . . . . . . . 81
SECTION 12.06. RULES BY TRUSTEE AND AGENTS . . . . . . . . . . . 81
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS . . . . . . . . . . . . 81
SECTION 12.08. GOVERNING LAW . . . . . . . . . . . . . . . . . . 81
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS . . . . . . . . . . . . . . . . . . . . 81
SECTION 12.10. SUCCESSORS . . . . . . . . . . . . . . . . . . . . 82
SECTION 12.11. .SEVERABILITY . . . . . . . . . . . . . . . . . . 82
SECTION 12.12. COUNTERPART ORIGINALS . . . . . . . . . . . . . . 82
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC. . . . . . . . . 82
EXHIBITS
EXHIBIT A-1 FORM OF 144A/IAI GLOBAL NOTE
EXHIBIT A-2 FORM OF REGULATION S GLOBAL NOTE
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
EXHIBIT E FORM OF NOTATION OF SUBSIDIARY GUARANTEE
EXHIBIT F FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of February 26, 1998 between Oshkosh
Truck Corporation, a Wisconsin corporation (the "Company"), the
Subsidiary Guarantors (as hereinafter defined) and Firstar Trust
Company, as trustee (the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee
agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders of the 8-3/4% Senior Subordinated
Notes due 2008 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means a global note in the form of
Exhibit A-1 hereto bearing the Global Note 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 Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary
of such specified Person, including, without limitation,
Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into or becoming a Subsidiary
of such specified Person and (ii) Indebtedness secured by a Lien
encumbering any assets acquired by such specified Person.
"Additional Notes" means up to $50.0 million in
aggregate principal amount of Notes (other than the Initial
Notes) issued under this Indenture in accordance with Sections
2.02 and 4.09 hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided, that beneficial
ownership of 25% or more of the Voting Stock of a Person shall be
deemed to be control.
"Agent" means any Registrar, Paying Agent or
co-registrar.
"Applicable Procedures" means, with respect to any
transfer or exchange of or for beneficial interests in any Global
Note, the rules and procedures of the Depositary, Euroclear and
Cedel that apply to such transfer or exchange.
"Asset Sale" means: (i) the sale, lease, conveyance or
other disposition of any assets or rights (including, without
limitation, by way of a sale and leaseback) other than sales of
inventory in the ordinary course of business (provided that the
sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its
Subsidiaries taken as a whole will be governed by the provisions
of Section 4.15 hereof and/or the provisions of Section 5.01
hereof and not by the provisions of Section 4.10 hereof); and
(ii) the issue or sale by the Company or any of its Subsidiaries
of Equity Interests of any of the Company's Subsidiaries, in the
case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a
fair market value in excess of $1.5 million or (b) for net
proceeds in excess of $1.5 million. Notwithstanding the
foregoing, the following items shall not be deemed to be Asset
Sales: (i) a transfer of assets by the Company to a Wholly Owned
Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary
to the Company or to another Wholly Owned Restricted Subsidiary,
(ii) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary, (iii) a Restricted Payment that is permitted by
Section 4.07 hereof, (iv) the sale by the Company of Equity
Interests in, or assets of, Summit Performance Systems, Inc. for
net proceeds that include promissory notes in an aggregate
principal amount of not more than $5.0 million, (v) the initial
transfers of Lease Assets from MFSI to another Leasing Subsidiary
and (vi) transfers of Lease Assets to or by a Leasing Subsidiary
in the ordinary course of business.
"Attributable Debt" in respect of a sale and leaseback
transaction means, 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.
"Board of Directors" means the Board of Directors of
the Company, or any authorized committee of the Board of
Directors.
"Borrowing Base" means, as of any date, an amount equal
to the sum of (a) 85% of the face amount of all accounts
receivable owned by the Company and the Subsidiary Guarantors
that are not Foreign Subsidiaries as of such date that are not
more than 90 days past due, and (b) 65% of the book value of all
inventory owned by the Company and its Subsidiary Guarantors that
are not Foreign Subsidiaries as of such date; minus the sum of
(a) the aggregate amount of trade payables of the Company and its
Subsidiary Guarantors that are not Foreign Subsidiaries as of
such date, and (b) the aggregate outstanding Indebtedness under
any Floor Plan Financing Facility as of such date, all calculated
on a consolidated basis and in accordance with GAAP.
"Business Day" means any day other than a Legal
Holiday.
"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) United States dollars or,
solely with respect to any Foreign Subsidiary, its local currency
equivalent; (ii) securities issued or directly and fully
guaranteed or insured by the United States government or any
agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof)
having maturities of not more than six months from the date of
acquisition; (iii) certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding
six months and overnight bank deposits, in each case with any
lender party to the Senior Credit Agreement or with any domestic
commercial bank having capital and surplus in excess of $500
million and a Xxxxxxxx Bank Watch Rating of "B" or better; (iv)
repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (ii)
and (iii) above entered into with any financial institution
meeting the qualifications specified in clause (iii) above; (v)
commercial paper having the highest rating obtainable from
Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation
and in each case maturing within six months after the date of
acquisition; and (vi) money market funds at least 95% of the
assets of which constitute Cash Equivalents of the kinds
described in clauses (i) - (v) of this definition.
"Cedel" means Cedel Bank, societe anonyme.
"Certificated Note" means a certificated Note
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 Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests
in the Global Note" attached thereto.
"Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially
all of the assets of the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as such term is used in Section
13(d)(3) of the Exchange Act); (ii) the adoption of a plan
relating to the liquidation or dissolution of the Company; (iii)
the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is
that any "person" (as defined above), other than the Principals
and their Related Parties, becomes the "beneficial owner" (as
such term is defined in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the
right to acquire, whether such right is currently exercisable or
is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 35% of the
Voting Stock of the Company (measured by voting power rather than
number of shares); or (iv) the Company consolidates with, or
merges with or into, any Person, or any Person consolidates with,
or merges with or into, the Company, in any such event pursuant
to a transaction in which any of the outstanding Voting Stock of
the Company is converted into or exchanged for cash, securities
or other property, other than any such transaction where the
Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance).
"Company" means Oshkosh Truck Corporation, and any and
all successors thereto.
"Consolidated Cash Flow" means, with respect to any
Person for any period, the Consolidated Net Income of such Person
for such period plus: (i) an amount equal to any extraordinary
loss plus any net loss realized in connection with an Asset Sale
(to the extent such losses were deducted in computing such
Consolidated Net Income); plus (ii) provision for taxes based on
income or profits of such Person and its Subsidiaries for such
period, to the extent that such provision for taxes was included
in computing such Consolidated Net Income; plus (iii)
consolidated interest expense of such Person and its Subsidiaries
for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment
obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to
Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income; plus (iv)
depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash
expenses (including, without limitation, LIFO charges but
excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Subsidiaries for
such period to the extent that such depreciation, amortization
and other non-cash expenses were deducted in computing such
Consolidated Net Income; minus (v) non-cash items increasing such
Consolidated Net Income for such period (including without
limitation under any LIFO credit), in each case, on a
consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the
income or profits of, and the depreciation and amortization and
other non-cash expenses of, a Subsidiary of the referent Person
shall be added to Consolidated Net Income to compute Consolidated
Cash Flow only to the extent that a corresponding amount would be
permitted at the date of determination to be dividended or
otherwise distributed to the Company by such Subsidiary without
prior governmental approval (that has not been obtained), and
without direct or indirect restriction pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable
to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any
Person for any period, the aggregate of the Net Income of such
Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided
that: (i) the Net Income (but not loss) of any Person that is not
a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the referent
Person or a Wholly Owned Subsidiary thereof that is a Subsidiary
Guarantor; (ii) the Net Income of any Restricted Subsidiary shall
be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary
of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been
obtained) or, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders; (iii) the Net
Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition
shall be excluded; (iv) the cumulative effect of a change in
accounting principles shall be excluded; (v) the Net Income (or
loss) of any Unrestricted Subsidiary that is a Leasing Subsidiary
shall be included; provided, that such Net Income shall be so
included only to the extent of cash dividends or other cash
distributions paid by such Leasing Subsidiary during such period
to the Company or a Restricted Subsidiary; and (vi) the Net
Income (but not loss) of any Unrestricted Subsidiary (other than
a Leasing Subsidiary) shall be excluded, whether or not
distributed to the Company or one of its Restricted Subsidiaries.
MFSI shall be considered an Unrestricted Subsidiary for purposes
of this definition provided that (a) MFSI incurs no Indebtedness
other than Indebtedness of MFSI existing on the date of the
Indenture and has no Indebtedness other than Indebtedness that
would be Non-Recourse Debt but for the existence of the Letter
Agreements and (b) none of the Company or any of its Restricted
Subsidiaries have made any payment or contribution in connection
with any Letter Agreement.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 12.02 hereof or such
other address as to which the Trustee may give notice to the
Company.
"Credit Facilities" means, one or more debt facilities
(including, without limitation, the Senior Credit 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) or letters of credit,
in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
Indebtedness incurred under Credit Facilities in existence on the
date on which Notes are first issued and authenticated under the
Indenture shall be deemed to have been incurred on such date in
reliance on, and shall be permitted by, the exceptions provided
by clause (i) or (ii), as applicable, of the definition of
Permitted Indebtedness.
"Custodian" means the Trustee, as custodian with
respect to the Notes 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 Notes 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 Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Senior Debt" means: (i) any Indebtedness
outstanding under the Senior Credit Agreement and (ii) any other
Senior Debt permitted under the Indenture the principal amount of
which is $25 million or more and that has been designated by the
Company (with, so long as the Senior Credit Agreement is in
effect, the consent of the Representative thereunder) as
"Designated Senior Debt."
"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 whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature; provided,
however, that any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the
right to require the Company to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall
not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such
repurchase or redemption complies with Section 4.07 hereof.
"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).
"Euroclear" means Xxxxxx 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.
"Exchange Notes" means the Notes issued in the Exchange
Offer pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning
set forth in the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the
Company and its Subsidiaries (other than Indebtedness under the
Senior Credit Agreement) in existence on the date of the
Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of: (i) the
consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings
(other than letters of credit posted in lieu of performance or
completion bonds), and net payments (if any) pursuant to Hedging
Obligations); and (ii) the consolidated interest of such Person
and its Restricted Subsidiaries that was capitalized during such
period; and (iii) any interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one
of its Restricted Subsidiaries (whether or not such Guarantee or
Lien is called upon); and (iv) the product of (a) all dividend
payments, whether or not in cash, on any series of preferred
stock of such Person or any of its Restricted Subsidiaries, other
than dividend payments on Equity Interests payable solely in
Equity Interests of the Company (other than Disqualified Stock)
or to the Company or a Restricted Subsidiary of the Company,
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,
expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP. MFSI shall not be considered a
Restricted Subsidiary for purposes of this definition provided
that (a) MFSI incurs no Indebtedness other than Indebtedness of
MFSI existing on the date of the Indenture and has no
Indebtedness other than Indebtedness that would be Non-Recourse
Debt but for the existence of the Letter Agreements and (b) none
of the Company or any of its Restricted Subsidiaries have made
any payments or contribution in connection with any Letter
Agreement.
"Fixed Charge Coverage Ratio" means with respect to any
Person for any period, the ratio of the Consolidated Cash Flow of
such Person and its Restricted Subsidiaries for such period to
the Fixed Charges of such Person and its Restricted Subsidiaries
for such period. In the event that the referent Person or any of
its Restricted Subsidiaries incurs, assumes, Guarantees or
redeems any Indebtedness (other than revolving credit or floor
plan borrowings) or issues or redeems preferred stock subsequent
to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on which
the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to
such incurrence, assumption, Guarantee or redemption of
Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the beginning of the applicable
four-quarter reference period. In addition, for purposes of
making the computation referred to above (i) acquisitions that
have been made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to
the Calculation Date shall be deemed to have occurred on the
first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated (x)
without giving effect to clause (iii) of the proviso set forth in
the definition of Consolidated Net Income and (y) to include the
pro forma adjustments reflected in the unaudited pro forma
condensed consolidated financial statements prepared in
connection with the acquisition of McNeilus Companies, Inc. and
included in the Offering Memorandum with respect to the Notes,
and an adjustment of up to $1.0 million reflecting the difference
between $1.3 million and the actual charitable contributions made
by the Company for any four quarter period ending on or prior to
March 31, 1999 and (ii) the Consolidated Cash Flow attributable
to discontinued operations, as determined in accordance with
GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, and (iii) the Fixed Charges
attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the
extent that the obligations giving rise to such Fixed Charges
will not be obligations of the referent Person or any of its
Restricted Subsidiaries following the Calculation Date.
"Floor Plan Financing Facility" means any facility
entered or to be entered into by the Company or any Restricted
Subsidiary pursuant to which such Person may (i) incur
Indebtedness to purchase vehicles and/or related equipment from
vendors for the prompt resale to customers in the ordinary course
of business and (ii) grant a security interest in such vehicles
and/or related equipment to secure such borrowings.
"Foreign Borrowing Base" means, as of any date, an
amount equal to the sum of (a) 85% of the face amount of all
accounts receivable owned by Restricted Subsidiaries that are
Foreign Subsidiaries as of such date that are not more than 90
days past due, and (b) 65% of the book value of all inventory
owned by Restricted Subsidiaries that are Foreign Subsidiaries as
of such date; minus the aggregate amount of trade payables of
Restricted Subsidiaries that are Foreign Subsidiaries as of such
date, all calculated on a consolidated basis and in accordance
with GAAP.
"Foreign Subsidiary" means any Subsidiary not organized
and validly existing under the laws of the United States or any
state thereof or the District of Columbia.
"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 the date of
this Indenture.
"Global Notes" means, individually and collectively,
each of the Restricted Global Notes and the Unrestricted Global
Notes, in the form of Exhibit A hereto issued in accordance with
Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in
Section 2.06(g)(ii), which is required to be placed on all Global
Notes 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; provided,
however, that the Letter Agreements shall not be deemed
Guarantees.
"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; (ii) other agreements or arrangements designed
to protect such Person against fluctuations in interest rates;
and (iii) agreements or arrangements designed to protect such
Person against fluctuations in the value of foreign currency.
"Holder" means a Person in whose name a Note is
registered.
"IAI Global Note" means the global Note in the form of
Exhibit A-1 hereto bearing the Global Note 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 Notes 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 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.
"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 Note through a Participant.
"Initial Notes" means $100,000,000 in aggregate
principal amount of Notes issued under this Indenture on the date
hereof.
"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.
"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 the Company or
any Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Subsidiary of the
Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the
Company, the Company shall be deemed to have made an Investment
on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Subsidiary not sold
or disposed of in an amount determined as provided in the final
paragraph of Section 4.07 hereof.
"Lease Assets" means, with respect to any lease, all of
the following property and interests in property whether now
existing or existing in the future or hereafter acquired or
arising: (i) all vehicles or equipment manufactured or
refurbished by the Company or any of its Subsidiaries (and truck
chassis, cement block boom trucks and similar vehicles or
equipment manufactured or refurbished by third parties) and
acquired by a Leasing Subsidiary in connection with such assets
being contemporaneously leased to a third party; (ii) all leases
and other contracts or agreements relating to the lease financing
by a customer of vehicles or equipment manufactured or
refurbished by the Company or any of its Subsidiaries; (iii) all
accounts receivable and other obligations incurred by lessees in
connection with the foregoing, no matter how evidenced; (iv) all
rights to any vehicles or equipment subject to any of the
foregoing after or in connection with creation of the foregoing,
including, without limitation, returned or repossessed goods; (v)
all reserves and credit balances with respect to any such lease
contracts or agreements or lessees; (vi) all letters of credit,
security or guarantees for any of the foregoing; (vii) all
insurance policies or reports relating to any of the foregoing;
and (viii) all books and records relating to any of the
foregoing.
"Leasing Subsidiary" means MFSI, Oshkosh/McNeilus
Financial Services, Inc., Oshkosh/McNeilus Financial Services
Partnership and any other Subsidiary (or partnership of which a
Subsidiary of the Company is a general partner) that is
designated by the Board of Directors of the Company as a Leasing
Subsidiary and that is exclusively engaged in Leasing
Transactions and activities related thereto. If at any time any
Leasing Subsidiary should engage in a transaction or activity
other than those described above, it shall thereafter cease to be
a Leasing Subsidiary for purposes of the Indenture.
"Leasing Subsidiary Undertaking" means a guarantee (i)
of indemnification obligations with respect to representations
and warranties made by a Leasing Subsidiary in connection with a
transfer of Lease Assets to a partnership that is a Leasing
Subsidiary, provided that such representations and warranties are
similar to those that would customarily be made in connection
with a transfer of assets in a lease securitization; (ii) of the
performance by a Leasing Subsidiary of its obligations as tax
matters partner or as portfolio manager of a partnership that is
a Leasing Subsidiary; or (iii) of the performance by a Leasing
Subsidiary of its obligations as a partner to a partnership that
is a Leasing Subsidiary, provided, however, that the guarantee of
obligations set forth in clause (iii) above shall not at any time
exceed the amount that the Company could then invest in a Leasing
Subsidiary pursuant to clause (f) of the definition of Permitted
Investments and, provided, further, that the guarantees set forth
in clauses (i), (ii) and (iii) above shall not include guarantees
of Indebtedness of a Leasing Subsidiary or obligations to make
loans, investments or capital contributions in or to a
partnership that is a Leasing Subsidiary.
"Leasing Transaction" means (i) the sale or other
disposition to a third party of Lease Assets or an interest
therein; (ii) the borrowing of money secured by Lease Assets; or
(iii) the sale or other disposition of Lease Assets or an
interest therein to a Leasing Subsidiary followed by a financing
transaction in connection with such sale or disposition of such
Lease Assets (whether such financing transaction is effected by
such Leasing Subsidiary or by a third party to whom such Leasing
Subsidiary sells such Lease Assets or interests therein);
provided that in each of the foregoing, the Company or its
Restricted Subsidiaries receive or have received at least 95% of
the aggregate sale price attributed to the vehicles and equipment
that underlie the Leases financed in such transaction.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of New York or at a place
of payment are authorized by law, regulation or executive order
to remain 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.
"Letter Agreement" means (i) a guarantee in place on
the date of this Indenture in an amount not to exceed $1.0
million by McNeilus Truck and Manufacturing, Inc. of obligations
of MFSI to FBS Business Finance Corporation and (ii) letter
agreements in effect on the date of this Indenture concerning the
maintenance by McNeilus Companies, Inc. of a minimum net worth of
MFSI for the benefit of the lenders to MFSI on the date of this
Indenture and related documents in favor of Navistar Financial
Corporation.
"Letter of Transmittal" means the letter of transmittal
to be prepared by the Company and sent to all Holders of the
Notes for use by such Holders in connection with the Exchange
Offer.
"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).
"Liquidated Damages" means all liquidated damages then
owing pursuant to Section 5 of the Registration Rights Agreement.
"MFSI" means McNeilus Financial Services, Inc.
"Net Income" means, with respect to any Person, the net
income (loss) of such Person, determined in accordance with GAAP
and before any reduction in respect of preferred stock dividends,
excluding, however, (i) any gain (but not loss), together with
any related provision for taxes on such gain (but not loss),
realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback
transactions), or (b) the disposition of any securities by such
Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries, and (ii) any extraordinary or
nonrecurring gain (but not loss), together with any related
provision for taxes on such extraordinary or nonrecurring gain
(but not loss).
"Net Proceeds" means the aggregate cash proceeds
received by the Company 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 paid or payable as a result thereof (after taking
into account any available tax credits or deductions and any tax
sharing arrangements), amounts required to be applied to the
repayment of Senior Debt secured by a Lien on the asset or assets
that were the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
"Non-U.S. Person" means a Person who is not a U.S.
Person.
"Notes" has the meaning assigned to it in the preamble
to this Indenture.
"Non-Recourse Debt" means Indebtedness as to which
neither the Company nor any of its Restricted Subsidiaries (i)
provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness, but
excluding undertakings customary in lease securitization
transactions for the benefit of any Leasing Subsidiary and
guarantees thereof), (ii) is directly or indirectly liable (as a
guarantor or otherwise), or (iii) constitutes the lender.
"Obligations" means any principal, interest (including
interest accruing after the commencement of any bankruptcy,
reorganization, insolvency or similar proceeding relating to the
Company or any of its Subsidiaries whether or not allowed as a
claim in such proceeding), penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the
Company.
"Officer" means, with respect to any Person, the
Chairman of the Board, 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 Company by two Officers of the Company, one of whom
must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the
Company, that meets the requirements of Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal
counsel who is reasonably acceptable to the Trustee, that meets
the requirements of Section 12.05 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the
Company or the Trustee.
"Participant" means, with respect to the Depositary,
Euroclear or Cedel, a Person who has an account with the
Depositary, Euroclear or Cedel, respectively (and, with respect
to The Depository Trust Company, shall include Euroclear and
Cedel).
"Permitted Business" means (a) any business in which
the Company and its Subsidiaries are engaged on the date of the
Indenture or any reasonable extension or expansion of such
businesses and (b) any business similar or related to the
manufacture, design, leasing, marketing, financing, servicing,
refurbishment, distribution or resale of specialty trucks or
truck bodies or of parts or components thereof.
"Permitted Investments" means (a) any Investment in the
Company or in a Subsidiary Guarantor; (b) any Investment in Cash
Equivalents; (c) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person, if as a result of such
Investment (i) such Person becomes a Wholly Owned Restricted
Subsidiary of the Company and a Subsidiary Guarantor or (ii) such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Restricted
Subsidiary of the Company that is a Subsidiary Guarantor and that
is engaged in the same or a similar line of business as the
Company and its Subsidiaries were engaged in on the date of the
Indenture; (d) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant
to and in compliance with Section 4.10 hereof; (e) any
acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company;
(f) Investments in Leasing Subsidiaries having an aggregate fair
market value (measured on the date such Investment was made and
without giving effect to subsequent changes in value) when taken
together with all other Investments made pursuant to this clause
(f) that are at the time outstanding, not to exceed $15.0
million; provided, that Investments made by a Leasing Subsidiary
in another Leasing Subsidiary do not count against such $15.0
million limitation; (g) contributions of Lease Assets from one
Leasing Subsidiary to another Leasing Subsidiary; (h) Investments
that are Leasing Subsidiary Undertakings; (i) Investments in
Nations Casualty Insurance, Inc. in an aggregate amount not to
exceed the aggregate amount of dividends paid to the Company by
Nations Casualty Insurance, Inc. after the date of the Indenture;
(j) Investments in Permitted Joint Ventures, Unrestricted
Subsidiaries or Foreign Subsidiaries having an aggregate fair
market value (measured on the date each such Investment was made
and without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to this
clause (j) that are at the time outstanding, not to exceed $15.0
million; and (k) other Investments in any Person having an
aggregate fair market value (measured on the date each such
Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments
made pursuant to this clause (k) that are at the time
outstanding, not to exceed $10.0 million.
"Permitted Joint Venture" means any joint venture,
partnership or other Person incorporated or otherwise formed in a
jurisdiction outside the United States or the District of
Columbia (i) designated as a Permitted Joint Venture by the Board
of Directors, all of whose Indebtedness is Non-Recourse Debt or
otherwise permitted to be incurred by such entity pursuant to
Section 4.09(ii)(c) and/or Section 4.09(xvi), and (ii) which is
engaged in a Permitted Business. Any such designation or
designation to the contrary shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution giving
effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing
provisions.
"Permitted Junior Securities" means Equity Interests in
the Company or any Subsidiary Guarantor or debt securities that
are subordinated to all Senior Debt (and any debt or equity
securities issued in exchange for Senior Debt) to substantially
the same extent as, or to a greater extent than, the Notes are
subordinated to Senior Debt pursuant to Article 10 hereof.
"Permitted Liens" means: (i) Liens securing
Indebtedness and Guarantees under Credit Facilities or other
Senior Debt that was permitted by the terms of this Indenture to
be incurred; (ii) Liens on vehicles or related equipment securing
Indebtedness under Floor Plan Financing Facilities that was
permitted by the terms of this Indenture to be incurred; (iii)
Liens on assets of a Leasing Subsidiary securing Indebtedness
under Leasing Transactions, that were permitted by terms of this
Indenture to be incurred; (iv) Liens in favor of the Company and
its Subsidiary Guarantors; (v) Liens on property of a Person
existing at the time such Person is merged into or consolidated
with the Company or any Subsidiary of the Company; provided that
such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other
than those of the Person merged into or consolidated with the
Company; (vi) Liens on property existing at the time of
acquisition thereof by the Company or any Subsidiary of the
Company, provided that such Liens were in existence prior to the
contemplation of such acquisition; (vii) Liens to secure
obligations in respect of statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (viii) Liens to
secure Indebtedness (including Capital Lease Obligations)
permitted by Section 4.09(vi) hereof covering only the assets
acquired with such Indebtedness; (ix) Liens (including Liens to
secure Indebtedness under the Senior Credit Agreement) existing
on the date of this Indenture; (x) Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided that any
reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (xi) Liens on
assets of Subsidiary Guarantors to secure Senior Debt of such
Subsidiary Guarantors that was permitted by this Indenture to be
incurred; (xii) Liens on assets of Unrestricted Subsidiaries that
secure Non-Recourse Debt of Unrestricted Subsidiaries; (xiii)
Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security; (xiv) easements,
rights-of-way, municipal and zoning ordinances and similar
charges, encumbrances, title defects or other irregularities that
do not materially interfere with the ordinary course of business
of the Company or any of the Restricted Subsidiaries; (xv) any
interest or title of a lessor in the property subject to any
Capitalized Lease or operating lease; (xvi) Liens arising from
filing Uniform Commercial Code financing statements regarding
leases; (xvii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (xviii) Liens on
customer deposits in favor of the depositor; (xix) Liens
encumbering customary initial deposits and margin deposits, and
other Liens that are either within the general parameters
customary in the industry and incurred in the ordinary course of
business, in each case securing Hedging Obligations; (xx) Liens
arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the
Company or any of the Restricted Subsidiaries in the ordinary
course of business in accordance with the past practices of the
Company and the Restricted Subsidiaries prior to the date on
which the Notes are issued; (xxi) carriers', warehousemen's,
mechanics', landlords' materialmen's, repairmen's or other like
Liens arising in the ordinary course of business in respect of
obligations not overdue for a period in excess of 60 days or
which are being contested in good faith by appropriate
proceedings promptly instituted and diligently prosecuted;
provided that any reserve or other appropriate provision as shall
be required to conform with GAAP shall have been made therefor;
(xxii) any attachment or judgment Lien not constituting an Event
of Default under Section 6.01(f) hereof; and (xxiii) Liens on
property of the Company or any Subsidiary of the Company with
respect to obligations that do not exceed $5.0 million in the
aggregate at any one time outstanding.
"Permitted Refinancing Indebtedness" means any
Indebtedness of the Company or any of its Restricted Subsidiaries
issued in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the
principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus accrued
interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable
expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at least
as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv)
such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Principal" means J. Xxxxx Xxxxxxx, Xx., Xxxxxxx X.
Xxxxxxx and Cadence Company, as long as a majority of its
economic interest is held by J. Xxxxx Xxxxxxx, Xx., Xxxxxxx X.
Xxxxxxx and their Related Parties.
"Private Placement Legend" means the legend set forth
in Section 2.06(g)(i) to be placed on all Notes issued under this
Indenture except where otherwise permitted by the provisions of
this Indenture.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of February 26, 1998, by and among the
Company and the other parties named on the signature pages
thereof, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements
between the Company and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes
under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a global Note in the
form of Exhibit A-2 hereto bearing the Private Placement Legend
and deposited with or on behalf of the Depositary and registered
in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the
Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Parties" with respect to any Principal means
any (A) 70% (or more) owned Subsidiary, or spouse or immediate
family member (in the case of an individual) of such Principal or
(B) trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 70% or more controlling interest of which
consist of such Principal and/or such other Persons referred to
in the immediately preceding clause (A).
"Representative" means the indenture trustee or other
trustee, agent or representative in respect of any Designated
Senior Debt; provided that, if and for so long as any Designated
Senior Debt lacks such a representative, then the Representative
for such Designated Senior Debt shall at all times constitute the
holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
"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 Broker-Dealer" has the meaning set forth in
the Registration Rights Agreement.
"Restricted Certificated Note" means a Certificated
Note bearing the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing
the Private Placement Legend.
"Restricted Investment" means any Investment other than
a Permitted Investment.
"Restricted Period" means the 40-day restricted period
as defined in Regulation S.
"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 903" means Rule 903 promulgated under the
Securities Act.
"Rule 904" means Rule 904 promulgated under the
Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Credit Agreement" means that certain Credit
Agreement, dated as of the date of this Indenture, by and among
the Company, Bank of America National Trust and Savings
Association (as administrative agent) and the co-agent, if any,
and the Lenders named therein, including any related notes,
guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced (directly or
indirectly) in whole or in part from time to time.
"Senior Debt" means: (i) all Indebtedness now or
hereafter outstanding under Credit Facilities and all Hedging
Obligations with respect thereto; (ii) any other Indebtedness
permitted to be incurred by the Company under the terms of this
Indenture, unless the instrument under which such Indebtedness is
incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Notes and (iii) all
Obligations with respect to the foregoing. Notwithstanding
anything to the contrary in the foregoing, Senior Debt will not
include (v) Indebtedness which is classified as non-recourse in
accordance with GAAP or any unsecured claim arising in respect
hereof by reason of application of section 1111(b)(1) of the U.S.
bankruptcy code, (w) any liability for federal, state, local or
other taxes owed or owing by the Company, (x) any Indebtedness of
the Company to any of its Subsidiaries or other Affiliates, (y)
any trade payables or (z) any Indebtedness that is incurred in
violation of this Indenture.
"Shelf Registration Statement" means the Shelf
Registration Statement as defined in the Registration Rights
Agreement.
"Significant Senior Debt" means any (i) Indebtedness
outstanding under Credit Facilities or (ii) Senior Debt with
principal amount due (as accreted value with respect to Senior
Debt issued at a discount) in excess of $5.0 million upon initial
issuance thereof.
"Significant Subsidiary" means any Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such Regulation is in effect on the date of this
Indenture.
"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 total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by
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).
"Subsidiary Guarantee" means the Subsidiary Guarantee
by each Subsidiary Guarantor of the Company's payment obligations
under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture.
" Subsidiary Guarantor" means each of (i) McNeilus
Truck & Manufacturing, Inc., Iowa Contract Fabricators, Inc.,
XxXxxxxx Fabricators, Inc., Kensett Fabricators, Inc., McNeilus
Companies, Inc. McNeilus Financial, Inc., Xxxxxx Manufacturing,
Inc., and Summit Performance Systems, Inc. and (ii) any other
Person that executes a Subsidiary Guarantee in accordance with
the provisions of this Indenture, and their respective successors
and assigns.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
77aaa-77bbbb) as in effect on the date on which this Indenture
is qualified under the TIA.
"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 Global Note" means a global Note in the
form of Exhibit A-1 attached hereto that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in
the Global Note" attached thereto, and that is deposited with or
on behalf of and registered in the name of the Depositary,
representing a series of Notes that do not bear the Private
Placement Legend.
"Unrestricted Certificated Note" means one or more
Certificated Notes that do not bear and are not required to bear
the Private Placement Legend.
"Unrestricted Subsidiary" means Nations Casualty
Insurance, Inc., Oshkosh/McNeilus Financial Services, Inc. and
any Subsidiary that is designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a Board Resolution; but only
to the extent that such Subsidiary: (i) has no Indebtedness other
than Non-Recourse Debt; (ii) is not party to any agreement,
contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less
favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not
Affiliates of the Company; (iii) is a Person with respect to
which neither the Company 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; and (iv) has not
guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its
Restricted Subsidiaries (excluding assumption of Indebtedness of
MFSI by any Leasing Subsidiary). Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the Board Resolution giving
effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing
conditions and was permitted under Section 4.07 hereof. 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
the Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Company
as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company
shall be in default of such covenant). The Board of Directors of
the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that such designation
shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company 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 hereof, 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.
"U.S. Person" means a U.S. person as defined in Rule
902(o) under the Securities Act.
"Weighted Average Life to Maturity" means, when applied
to any Indebtedness at any date, the number of years obtained by
dividing (a) the sum of the products obtained by multiplying (x)
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 (y)
the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment, by
(b) the then outstanding principal amount of such Indebtedness.
"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 or by
such Person and one or more Wholly Owned Subsidiaries of such
Person.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Authentication Order" 2.02
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Permitted Debt" 4.09
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 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 Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the Notes and the Subsidiary Guarantees
means the Company and the Subsidiary Guarantors, respectively,
and any successor obligor upon the Notes and the Subsidiary
Guarantees, respectively.
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
(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 NOTES
Section 2.01.Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note shall
be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture and the Company, the Subsidiary Guarantors 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 Note
conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A-1 or A-2 attached hereto (including
the Global Note Legend thereon and the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A-1
attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Each Global Note shall represent such
of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon
and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the
Trustee or the Note Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) Euroclear and Cedel 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 Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Global
Notes that are held by Participants through Euroclear or Cedel
Bank.
Section 2.02. Execution and Authentication. One Officer shall sign the
Notes for the Company by manual or facsimile signature. The Company's
seal may be reproduced on the Notes and may be in facsimile form, but is
not required to be included on the Notes.
If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under
this Indenture.
The Trustee shall, upon a written order of the Company
signed by one Officer (an "Authentication Order"), authenticate
Notes for original issue up to the aggregate principal amount of
up to $150,000,000. The aggregate principal amount of Notes
outstanding at any time may not exceed $150,000,000 except as
provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes 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 Company.
Section 2.03. Registrar and Paying Agent. The Company shall maintain an
office or agency where Notes may be presented for registration of transfer
or for exchange ("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep
a register of the Notes and of their transfer and exchange. The
Company 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 Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global
Notes.
The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Note Custodian with
respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company 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, premium or Liquidated Damages, if any, or
interest on the Notes, and will notify the Trustee of any default by the
Company 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 Company 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 the Company or a
Subsidiary) shall have no further liability for the money. If
the Company 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 Company,
the Trustee shall serve as Paying Agent for the Notes.
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 312(a). If the Trustee is not the Registrar, the
Company 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 Notes and the Company shall otherwise
comply with TIA 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note 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 Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
All Global Notes will be exchanged by the Company for
Certificated Notes if (i) the Company delivers 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 Company within 90
days after the date of such notice from the Depositary or (ii)
the Company in its sole discretion determines that the Global
Notes (in whole but not in part) should be exchanged for
Certificated Notes and delivers a written notice to such effect
to the Trustee. Upon the occurrence of either of the preceding
events in (i) or (ii) above, Certificated Notes shall be issued
in such names as the Depositary shall instruct the Trustee.
Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a
Global Note 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 Note. A Global
Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a
Global Note may be transferred and exchanged as provided in
Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in
the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the
Applicable Procedures. Beneficial interests in the Restricted
Global Notes 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 Notes 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
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with
the transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Regulation S Global Note 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 Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note. 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 Notes. 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 directing the
Depositary to credit or cause to be credited a beneficial
interest in another Global Note 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 Note 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 Note shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event
shall Certificated Notes be issued upon the transfer or exchange
of beneficial interests in the Regulation S Global Note prior to
(x) the expiration of the Restricted Period and (y) the receipt
by the Registrar of any certificates required pursuant to Rule
903 under the Securities Act. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be deemed to
have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global
Notes. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another
Restricted Global Note 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 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, 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 Note, 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 Note for Beneficial Interests in the
Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for
a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note if the
exchange or transfer complies with the requirements of Section
2.06(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note 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 Note, 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 (D),
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 (B) or (D) above at a time when an Unrestricted
Global Note has not yet been issued, the Company 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 Notes in an aggregate principal amount equal
to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take
delivery thereof in the form of, a beneficial interest in a
Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests in
Global Notes for Certificated Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Certificated Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Certificated Note or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Certificated Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Certificated Note, 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;
(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
the Company 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,
the Trustee shall cause the aggregate principal amount of
the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Certificated
Note in the appropriate principal amount. Any Certificated
Note issued in exchange for a beneficial interest in a
Restricted Global Note 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 Notes to the Persons in whose names such Notes
are so registered. Any Certificated Note issued in exchange
for a beneficial interest in a Restricted Global Note
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.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Global Note may not be
exchanged for a Certificated Note or transferred to a Person
who takes delivery thereof in the form of a Certificated Note
prior to (x) the expiration of the Restricted 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 exemption from
the registration requirements of the Securities Act other than
Rule 903 or Rule 904.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Certificated Notes. A holder of a beneficial
interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Certificated Note or may transfer
such beneficial interest to a Person who takes delivery thereof
in the form of an Unrestricted Certificated Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Certificated Note 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
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Certificated Note 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 (D), 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.
(iii) Beneficial Interests in Unrestricted Global Notes
to Unrestricted Certificated Notes. If any holder of a
beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Certificated Note or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Certificated Note, 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 Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated
in the instructions a Certificated Note in the appropriate
principal amount. Any Certificated Note 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 Notes to the Persons in
whose names such Notes are so registered. Any Certificated Note
issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Certificated Notes for
Beneficial Interests.
(i) Restricted Certificated Notes to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted
Certificated Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such
Restricted Certificated Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Certificated
Note proposes to exchange such Note for a beneficial interest in
a Restricted Global Note, 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 Note 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 Note 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 Note 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 Note 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 Note is being
transferred to the Company 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 Note 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 Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (c) above, the
Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Certificated Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of a Restricted
Certificated Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such
Restricted Certificated Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case
of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or
(3) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Certificated Notes
proposes to exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(1)(c) thereof; or
(2) if the Holder of such Certificated Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, 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 (D),
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 Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Note.
(iii) Unrestricted Certificated Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of an
Unrestricted Certificated Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer
such Certificated Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted
Certificated Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Certificated Note to
a beneficial interest is effected pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted
Global Note has not yet been issued, the Company 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 Notes in an aggregate principal amount equal
to the principal amount of Certificated Notes so transferred.
(e) Transfer and Exchange of Certificated Notes for
Certificated Notes. Upon request by a Holder of Certificated
Notes and such Holder's compliance with the provisions of this
Section 2.06(e), the Registrar shall register the transfer or
exchange of Certificated Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Certificated Notes 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 Notes to Restricted
Certificated Notes. Any Restricted Certificated Note may be
transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Certificated Note if
the Registrar receives the following:
(A) if 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) if 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) if 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 Notes to Unrestricted
Certificated Notes. Any Restricted Certificated Note may be
exchanged by the Holder thereof for an Unrestricted Certificated
Note or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Certificated Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Restricted Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Certificated Notes proposes to exchange such Notes for an
Unrestricted Certificated Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Certificated
Notes proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of an Unrestricted
Certificated Note, 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 (D),
if the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company 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.
(iii) Unrestricted Certificated Notes to Unrestricted
Certificated Notes. A Holder of Unrestricted Certificated Notes
may transfer such Notes to a Person who takes delivery thereof in
the form of an Unrestricted Certificated Note. Upon receipt of a
request to register such a transfer, the Registrar shall register
the Unrestricted Certificated Notes pursuant to the instructions
from the Holder thereof.
(a) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company
shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate (i)
one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of the beneficial interests
in the Restricted Global Notes tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal that (x)
they are not broker-dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not
affiliates (as defined in Rule 144) of the Company, and accepted
for exchange in the Exchange Offer and (ii) Certificated Notes in
an aggregate principal amount equal to the principal amount of
the Restricted Certificated Notes accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such Notes,
the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and
deliver to the Persons designated by the Holders of Certificated
Notes so accepted Certificated Notes in the appropriate principal
amount.
(b) Legends. The following legends shall appear on the face of
all Global Notes and Certificated Notes 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, each Global Note and each Certificated Note (and all Notes
issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (1) BY THE INITIAL PURCHASER (a) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE
THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF APPLICABLE) OR IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (d) TO THE COMPANY, (e) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (f) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (2) BY
SUBSEQUENT PURCHASERS, AS SET FORTH IN (1)(a) THROUGH (e) ABOVE,
AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE, NO
REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE
EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY
EVIDENCED HEREBY."
(B) Notwithstanding the foregoing, any Global Note or
Certificated Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to
this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) 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 NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY."
(c) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged
for Certificated Notes or a particular Global Note has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Note
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 Note is
exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global
Note or for Certificated Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and
an endorsement shall be made on such Global Note 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 Note, such
other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or
by the Depositary at the direction of the Trustee to reflect such
increase.
(d) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Notes and Certificated Notes upon the
Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a
Certificated Note for any registration of transfer or exchange,
but the Company 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 Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being
redeemed in part.
(iv) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or
Certificated Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Certificated Notes
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of
any selection of Notes 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 Note so selected
for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part or (c) to register the
transfer of or to exchange a Note between a record date and the
next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all
other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Certificated Notes 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 Notes
If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction
of the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon receipt of an Authentication Order,
shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if
a Note is replaced. The Company may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of
the Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly
issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it,
those delivered to it for cancellation, those reductions in the
interest in a Global Note 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 Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note; however, Notes held by
the Company or a Subsidiary of the Company shall not be deemed to
be outstanding for purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide
purchaser.
If the principal amount of any Note 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 the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption
date or maturity date, money sufficient to pay Notes payable on
that date, then on and after that date such Notes shall be deemed
to be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver
or consent, Notes owned by the Company, or by any Person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company, shall be 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 Notes that the
Trustee knows are so owned shall be so disregarded.
Section 2.10. Temporary Notes
Until certificates representing Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt
of an Authentication Order, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of
certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate
Certificated Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and
no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention
requirement of the Exchange Act). Certification of the
destruction of all cancelled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, 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 Notes and
in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Company
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 Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) 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 Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30 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 Notes to be redeemed and (iv) the redemption
price.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall
select the Notes to be redeemed or purchased among the Holders of
the Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are
listed or, if the Notes 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 Notes 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 Notes not previously called for redemption.
The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount
thereof to be redeemed. Notes and portions of Notes selected
shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed,
the entire outstanding amount of Notes held by such Holder, even
if not a multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture
that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
Section 3.03. Notice of Redemption
Subject to the provisions of Section 3.09 hereof, at
least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed and
shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after
the redemption date upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion shall
be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption
ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes 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 Notes.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense;
provided, however, that the Company 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, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price. A notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price
One Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date. The Trustee
or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption
price of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest
shall cease to accrue on the Notes or the portions of Notes
called for redemption. If a Note 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 Note was registered at the close
of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption
because of the failure of the Company 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 Notes and in
Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon the Company's written request, the
Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07,
the Company shall not have the option to redeem the Notes
pursuant to this Section 3.07 prior to March 1, 2003.
Thereafter, the Company shall have the option to redeem the
Notes, in whole or in part, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued
and unpaid interest and Liquidated Damages thereon, if any, to
the applicable redemption date, if redeemed during the twelve-
month period beginning on March 1 of the years indicated below:
Year Percentage
2003 104.375%
2004 102.917%
2005 101.458%
2006 and thereafter 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, at any time prior to March 1, 2001, the Company may
on any one or more occasions redeem up to 35% of the aggregate
principal amount of the Initial Notes at a redemption price equal
to 108.750% of the principal amount thereof, plus accrued and
unpaid Liquidated Damages thereon, if any, to the applicable
redemption date, with the net cash proceeds of one or more public
offerings of common stock of the Company; provided that Notes in
an aggregate principal amount of at least 65% of the aggregate
principal amount of the Notes issued on the date of the Indenture
remain outstanding immediately after the occurrence of such
redemption (excluding Notes held by the Company and its
Subsidiaries); and provided, further, that such redemption shall
occur within 45 days of the date of the closing of such public
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 Company shall not be required to make mandatory
redemption payments with respect to the Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an offer to all Holders to
purchase Notes (an "Asset Sale Offer"), it shall follow the
procedures specified below.
The Asset Sale Offer shall remain open for a period of
20 Business Days following its commencement and no longer, except
to the extent that a longer period is required by applicable law
(the "Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the
Company shall purchase the principal amount of Notes required to
be purchased pursuant to Section 4.10 hereof (the "Offer Amount")
or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any
Notes 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 Note is registered at the close of business on such record
date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the
Company 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 Notes pursuant to the Asset Sale Offer.
The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall
state:
(a) that the Asset Sale Offer is being made pursuant to
this Section 3.09 and Section 4.10 hereof and the length of time
the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrete or accrue interest after the
Purchase Date;
(e) that Holders electing to have a Note purchased pursuant
to an Asset Sale Offer may only elect to have all of such Note
purchased and may not elect to have only a portion of such Note
purchased;
(f) that Holders electing to have a Note purchased pursuant
to any Asset Sale Offer shall be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note completed, or transfer by book-entry
transfer, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice
at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, 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
Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company
shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).
On or before the Purchase Date, the Company shall, to
the extent lawful, accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer, or if less than the
Offer Amount has been tendered, all Notes tendered, and shall
deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The
Company, 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 Notes tendered by such
Holder and accepted by the Company for purchase, and the Company
shall promptly issue a new Note, and the Trustee, upon written
request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company shall publicly announce the
results of the Asset Sale 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.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any,
and interest shall be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if
any, and interest then due. The Company shall pay all Liquidated
Damages, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.
The Company 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 Notes to the extent lawful; it
shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable
grace period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company 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 Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough
of Manhattan, the City of New York for such purposes. The
Company 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 Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company
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 Notes are outstanding, the Company shall
furnish to the Holders of Notes (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 the Company were
required to file such forms, including a "Management's Discussion
and Analysis of Consolidated Financial Condition and Results of
Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries
(showing in reasonable detail, either on the face of the
financial statements or in the footnotes thereto, the financial
condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the
Company, if material) and, with respect to the annual information
only, a report thereon by the Company's certified independent
accountants and (ii) all current reports that would be required
to be filed with the SEC on Form 8-K if the Company were required
to file such reports, in each case, within the time periods
specified in the SEC's rules and regulations. In addition,
following consummation of the Exchange Offer, whether or not
required by the rules and regulations of the SEC, the Company
shall file a copy of all such information and reports with the
SEC for public availability within the time periods specified in
the SEC's rules and regulations (unless the SEC will not accept
such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company
shall at all times comply with TIA 314(a).
(b) For so long as any Notes remain outstanding, the
Company and the Subsidiary Guarantors shall furnish to the
Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company and each Subsidiary Guarantor (to the
extent that such Subsidiary Guarantor is so required under the
TIA) 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 the Company and its Subsidiaries
during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining
whether the Company 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 the Company 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 the Company 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 Notes is prohibited or if such event has
occurred, a description of the event and what action the Company
is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the Auditing Standards Board of the American
Institute of Certified Public Accountants or any equivalent or
successor governing organization, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be
accompanied by a written statement of the Company's independent
public accountants (who shall be a firm of established national
reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company
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) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect
thereto.
Section 4.05. Taxes.
The Company 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 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 Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each of the Subsidiary Guarantors
covenants (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 Company and each of the
Subsidiary Guarantors (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law,
and covenants that it 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.
The Company 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 the Company's or any of its Restricted Subsidiaries'
Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Company's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company or to the Company
or a Restricted Subsidiary of the Company); (ii) purchase, redeem
or otherwise acquire or retire for value (including without
limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company; (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 Notes, 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) the Company 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 Fixed
Charge Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and
its Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (ii), (iii) and (iv) of
the next succeeding paragraph), is less than the sum, without
duplication, of (i) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period) from the
beginning of the first fiscal month commencing after the date of
this Indenture to the end of the Company's 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 cash
proceeds received by the Company since the date of this Indenture
as a contribution to its common equity capital or from the issue
or sale of Equity Interests of the Company (other than
Disqualified Stock) or from the issue or sale of Disqualified
Stock or debt securities of the Company that have been converted
into such Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a
Subsidiary of the Company), plus (iii) to the extent that any
Restricted Investment that was made after the date of the
Indenture is sold for cash or otherwise liquidated or repaid for
cash, the lesser of (A) the cash return of capital with respect
to such Restricted Investment (less the cost of disposition, if
any) and (B) the initial amount of such Restricted Investment,
plus (iv) 50% of any cash dividends or other cash distributions
received by the Company or a Restricted Subsidiary that is a
Subsidiary Guarantor after the date of this Indenture from MFSI
or an Unrestricted Subsidiary of the Company (other than
dividends or distributions made by Nations Casualty Insurance,
Inc.), to the extent that such dividends or other cash
distributions were not otherwise included in Consolidated Net
Income of the Company for such period, plus (v) to the extent
that any Unrestricted Subsidiary designated as such after the
date of this Indenture is redesignated as a Restricted Subsidiary
after the date of the Indenture, the lesser of (A) the fair
market value of the Company's 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, plus (vi) after the sale or
liquidation of Nations Casualty Insurance, Inc., 50% of the
excess of (A) any cash dividends or other cash distributions
received by the Company or a Subsidiary Guarantor after the date
of this Indenture from Nations Casualty Insurance, Inc. over (B)
any Investment in Nations Casualty Insurance, Inc. permitted
pursuant to clause (h) of the definition of Permitted
Investments, plus (vii) other Restricted Payments in an aggregate
amount not to exceed $5.0 million.
The foregoing provisions shall not prohibit (i) the
payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment
would have complied with the provisions of this Indenture; (ii)
the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests
of the Company in exchange for, or out of the net cash proceeds
of the substantially concurrent sale (other than to a Subsidiary
of the Company) of, other Equity Interests of the Company (other
than any Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be
excluded from clause (c)(ii) of the preceding paragraph; (iii)
the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness; (iv) the
payment of any dividend by a Subsidiary of the Company to the
holders of its common Equity Interests on a pro rata basis; and
(v) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any
Subsidiary of the Company held by any member of the Company's (or
any of its Subsidiaries') management pursuant to any management
equity subscription agreement or stock option agreement in effect
as of the date of this Indenture; provided that the aggregate
price paid for all such repurchased, redeemed, acquired or
retired Equity Interests shall not exceed $1.0 million in any
twelve-month period and shall not at any time exceed $5 million
in the aggregate and no Default or Event of Default shall have
occurred and be continuing immediately after such transaction;
(vi) Investments in securities not constituting cash or Cash
Equivalents and received in connection with an Asset Sale made
pursuant to the provisions of Section 4.10 or any other
disposition of assets not constituting an Asset Sale by reason of
the definition thereof; and (vii) repurchases of Equity Interests
deemed to occur upon exercise of stock options if such Equity
Interests represent a portion of the exercise price of such
options.
The Board of Directors may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation
would not cause a Default; provided that in no event shall all or
substantially all of the business currently operated by the
Company, McNeilus Truck & Manufacturing Inc., or Xxxxxx
Manufacturing, Inc. be transferred to or held by an Unrestricted
Subsidiary. For purposes of making such determination, all
outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the
Subsidiary so designated shall be deemed to be Restricted
Payments at the time of such designation and shall reduce the
amount available for Restricted Payments under the first
paragraph of this Section 4.07. All such outstanding Investments
shall 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 shall 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.
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 the Company or such Subsidiary, as the case may be,
pursuant to the Restricted Payment. The fair market value of any
non-cash Restricted Payment shall be determined by the Board of
Directors whose resolution with respect thereto shall be
delivered to the Trustee, such determination to be based upon an
opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if such fair market
value exceeds $5.0 million. Not later than five Business Days
after making any Restricted Payment, the Company shall deliver to
the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.07 were computed,
together with a copy of any fairness opinion or appraisal
required by this Indenture.
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted
Subsidiary to (i)(a) pay dividends or make any other
distributions to the Company or any of its Restricted
Subsidiaries (1) on its Capital Stock or (2) with respect to any
other interest or participation in, or measured by, its profits
or (b) pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries, (ii) make loans or advances to the
Company or any of its Restricted Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its
Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date hereof, (b) the Senior
Credit Agreement as in effect on the date hereof and any
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof,
provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements and
refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than
those contained in the Senior Credit Agreement as of the
hereof or the agreement governing such Existing Indebtedness as
of the date hereof, as applicable, (c) this Indenture and the
Notes, (d) applicable law, (e) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company
or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except to the extent such Indebtedness was
incurred in connection with or in anticipation of such
acquisition), which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so
acquired, provided that in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be
incurred by the acquiring Company or Restricted Subsidiary, as
applicable, at the time of such acquisition, (f) by reason of
non-assignment provisions in leases entered into in the ordinary
course of business and consistent with past practices,
(g) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the
nature described in clause (iii) above on the property so
acquired, (h) any agreement for the sale of a Restricted
Subsidiary that restricts distributions by that Restricted
Subsidiary pending its sale, (i) Permitted Refinancing
Indebtedness, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are
no more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced, (j)
secured Indebtedness otherwise permitted to be incurred pursuant
to the provisions of Section 4.12 hereof that limits the right of
the debtor to dispose of the assets securing such Indebtedness,
(k) any Indebtedness incurred by a Foreign Subsidiary pursuant to
clause (ii)(c) of the second paragraph of Section 4.09 hereof,
(l) provisions with respect to the disposition or distribution of
assets or property in an Asset Sale (or in a transaction which,
but for its size, would be an Asset Sale), or in joint venture
agreements and other similar agreements entered into in the
ordinary course of business and (m) restrictions on cash or other
deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company shall not issue any Disqualified Stock and
shall not permit any of its Restricted Subsidiaries to issue any
shares of preferred stock; provided, however, that the Company
may incur Indebtedness (including Acquired Debt) or issue shares
of Disqualified Stock and any Subsidiary Guarantor may incur
Indebtedness or issue preferred stock if the Fixed Charge
Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock or preferred
stock is issued would have been at least 2.0 to 1, 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 or preferred stock had been
issued, as the case may be, at the beginning of such four-quarter
period.
The provisions of the first paragraph of this Section 4.09
shall not apply to the incurrence of any of the following items
of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company and the
Subsidiary Guarantors of term Indebtedness under the Senior
Credit Agreement (or, if the Senior Credit Agreement has matured
or been terminated or repaid in whole or in part, any other
Credit Facility); provided that the aggregate principal amount of
all term Indebtedness outstanding under the Credit Facilities
after giving effect to such incurrence shall not exceed the
greater of (a) the aggregate amount of term Indebtedness borrowed
under the Senior Credit Agreement on the date of the Indenture
less the aggregate amount of all repayments, optional or
mandatory, of the principal of any term Indebtedness under the
Senior Credit Agreement (other than payments that are immediately
reborrowed) that have been made since the date of this Indenture
and (b) $30.0 million;
(ii) (a) the incurrence by the Company and the
Subsidiary Guarantors of revolving Indebtedness and letters of
credit pursuant to the Senior Credit Agreement; provided that the
aggregate principal amount of all revolving Indebtedness (with
letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) at any time outstanding under
the Senior Credit Agreement pursuant to this subsection (ii)(a)
after giving effect to such incurrence shall not exceed $100.0
million, less the aggregate amount of all Net Proceeds of Asset
Sales applied to permanently reduce revolving commitments with
respect to the Senior Credit Agreement pursuant to Section 4.10
hereof; (b) the incurrence by the Company and the Subsidiary
Guarantors of additional revolving Indebtedness and letters of
credit pursuant to the Credit Facilities; provided that the
aggregate principal amount of all such additional revolving
Indebtedness (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the
Company and its Subsidiary Guarantors thereunder) at any time
outstanding under all Credit Facilities after giving effect to each
incurrence does not exceed (i) the Borrowing Base minus (ii) $100.0
million (or such lesser amount as may then be the maximum aggregate
commitments under the Senior Credit Agreement); and (c) the incurrence
by Foreign Subsidiaries of revolving Indebtedness and letters of
credit pursuant to Credit Facilities; provided that the aggregate
principal amount of all revolving Indebtedness (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Foreign Subsidiaries thereunder) at any time
outstanding to Foreign Subsidiaries under all Credit Facilities after
giving effect to such incurrence shall not exceed the greater of (i)
$15.0 million and (ii) the Foreign Borrowing Base;
(iii) the incurrence by the Company and the Subsidiary Guarantors
of Indebtedness under any Floor Plan Financing Facility; provided that the
aggregate principal amount of all Indebtedness at any time outstanding
under all Floor Plan Financing Facilities after giving effect to such
incurrence shall not exceed the total cost of the vehicles and equipment
securing such Indebtedness;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of the Existing Indebtedness;
(v) the incurrence by the Company of Indebtedness represented by
the Initial Notes and the incurrence by the Subsidiary Guarantors of the
Subsidiary Guarantees;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Company or a Subsidiary Guarantor, in an aggregate
principal amount not to exceed $25.0 million at any time outstanding;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted by
this Indenture to be incurred pursuant to the first paragraph of this
Section 4.09 or clause (iv) or (v) of this paragraph;
(viii) the incurrence by the Company or any of the Subsidiary
Guarantors of intercompany Indebtedness between or among the Company and
any of the Subsidiary Guarantors or the incurrence by Wholly Owned
Restricted Subsidiaries of intercompany Indebtedness between or among
Wholly Owned Restricted Subsidiaries; provided, however, that: (i) if the
Company 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 Senior Debt and the Notes; and (ii)(A) any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a
Subsidiary Guarantor and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Subsidiary
Guarantor shall be deemed, in each case, to constitute an incurrence of
such Indebtedness by the Company or such Subsidiary Guarantor, as the case
may be, that was not permitted by this clause (viii);
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging: (i) interest rate risk with respect to any floating
rate Indebtedness that is permitted by the terms of this Indenture to be
outstanding; (ii) the value of foreign currencies purchased or received by
the Company in the ordinary course of business, or (iii) commodities
purchased in the ordinary course of business for use in a Permitted
Business and not for speculation;
(x) the guarantee by the Company or any of the Subsidiary
Guarantors of Indebtedness of the Company or a Subsidiary Guarantor that
was permitted to be incurred by another provision of this Section 4.09;
(xi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness incurred in respect of performance, surety
and similar bonds and letters of credit (and reimbursement obligations
with respect thereto) provided by the Company and the Restricted
Subsidiaries in the ordinary course of business for commercial purposes
and not for or related to money borrowed;
(xii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness for letters of credit relating to workers'
compensation claims and self-insurance or similar requirements in the
ordinary course of business;
(xiii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from guarantees of Indebtedness of
the Company or any of its Restricted Subsidiaries or other agreements of
the Company or any of its Restricted Subsidiaries providing for
indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the disposition of any
business, assets or Subsidiary, other than guarantees of Indebtedness
incurred by any person acquiring all or any portion of such business,
assets or Subsidiary for the purpose of financing such acquisition,
provided that the maximum aggregate liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds actually received
by the Company and its Subsidiaries in connection with such disposition;
(xiv) the incurrence by a Leasing Subsidiary of Indebtedness in
connection with a Leasing Transaction;
(xv) the incurrence by the Company or any Restricted Subsidiary
of Indebtedness in connection with the acquisition of assets or a new
Subsidiary Guarantor; provided such Indebtedness was incurred by the prior
owner of such assets or such Subsidiary Guarantor prior to such
acquisition by the Company or one of its Subsidiary Guarantors and was not
incurred in connection with, or in contemplation of, such acquisition by
the Company or a Subsidiary Guarantor; and provided further that the
principal amount (or accreted value, as applicable) of such Indebtedness,
together with any other outstanding Indebtedness secured pursuant to this
clause (xv) and any Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause
(xv), does not exceed $10.0 million; and
(xvi) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (xvi), not to
exceed $20.0 million; provided, however, that the principal amount (or
accreted value, as applicable) of Indebtedness of Restricted Subsidiaries
that are not Subsidiary Guarantors, at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (xvi), shall not
exceed $5.0 million.
For purposes of determining compliance with this covenant, in the
event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in clauses (i) through (xvi)
above or is entitled to be incurred pursuant to the first paragraph of
this covenant, the Company shall, in its sole discretion, classify such
item of Indebtedness in any manner that complies with this covenant.
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 will 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 Fixed
Charges of the Company as accrued. Nothing in this Section 4.09 shall
prohibit the incurrence by the Company's Unrestricted Subsidiaries of Non-
Recourse Debt (excluding Indebtedness owed by such Unrestricted Subsidiary
to the Company); provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company.
Section 4.10. Asset Sales
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to consummate an Asset Sale unless (x) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the
time of such Asset Sale at least equal to the fair market value (evidenced
by a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests
issued or sold or otherwise disposed of and (y) at least 75% of the
consideration received therefor by the Company or such Restricted
Subsidiary is in the form of cash; provided, however, that the amount of
(A) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by
their terms subordinated to the Notes or any guarantee thereof) that are
assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Company or such Restricted Subsidiary
from further liability and (B) any securities, notes or other obligations
received by the Company or any such Subsidiary from such transferee that
are contemporaneously (subject to ordinary settlement periods) converted
by the Company or such Restricted Subsidiary into cash (to the extent of
the cash received), shall be deemed to be cash for purposes of this
Section 4.10. A transfer of assets by the Company to a Wholly Owned
Subsidiary or by a Wholly Owned Subsidiary to the Company or to another
Wholly Owned Subsidiary, and an issuance of Equity Interests by a Wholly
Owned Subsidiary to the Company or to another Wholly Owned Subsidiary,
shall not be deemed to be an Asset Sale. Any Restricted Payment that is
permitted by Section 4.07 hereof will not be deemed to be an Asset Sale.
Within 360 days after receipt of any Net Proceeds from an Asset Sale,
the Company may apply the Net Proceeds from such Asset Sale, at its
option, (a) to permanently reduce the Senior Debt (or, if such Senior Debt
is revolving Indebtedness under a Credit Facility, to permanently reduce
any related commitments of lenders under the Senior Debt (provided that
such reduction shall have no effect on the amount of Indebtedness
permitted to be incurred pursuant to Section 4.09(ii)(b))), or (b) to the
acquisition of a majority of the assets of, or a majority of the Voting
Stock of, another Permitted Business, the making of a capital expenditure
or the acquisition of other assets that are not classified as current
assets under GAAP and are used or useful in a Permitted Business. Pending
the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such
Net Proceeds in any manner that is not prohibited by this Indenture. Any
Net Proceeds from such Asset Sale that are not finally applied or invested
as provided in the first sentence of this paragraph will be deemed to
constitute "Excess Proceeds." Within five days of each date on which the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company
shall commence an Asset Sale Offer (pro rata in proportion to the
principal amount (or accreted value, if applicable) outstanding in respect
of any Asset Sale Offer required by the terms of any pari passu
Indebtedness incurred in accordance with this Indenture) to all Holders
of Notes pursuant to Section 3.09 hereof to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds at an
offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the date fixed for the closing of such offer in accordance with
the procedures set forth in Section 3.09 hereof. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use such deficiency for any
purpose not otherwise prohibited by this Indenture. To the extent that
the aggregate amount of Notes tendered pursuant to an Asset Sale Offer
(and any pari passu Indebtedness, as aforesaid) exceeds the Excess
Proceeds, the Trustee shall select the Notes to be purchased on a pro rata
basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds will be deemed to be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or
for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on terms that are
no less favorable to the Company or the relevant Subsidiary than those
that would have been obtained in a comparable transaction by the Company
or such Subsidiary with an unrelated Person and (b) the Company delivers
to the Trustee (i) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess
of $1.0 million, a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies
with clause (a) above and that such Affiliate Transaction has been
approved by a majority of the disinterested members of the Board of
Directors and (ii) with respect to any Affiliate Transaction involving
aggregate consideration in excess of $5.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial
point of view issued by an accounting, appraisal or investment banking
firm of national standing; provided, however, that (i) any employment or
severance agreement and any amendment thereto entered into by the Company
or any of its Subsidiaries in the ordinary course of business, (ii)
transactions between or among the Company and/or its Restricted
Subsidiaries and transactions between or among the Company or any
Restricted Subsidiary and any Leasing Subsidiary in the ordinary course of
business (including the contribution of overhead costs consistent with
past practice and in the ordinary course of business), (iii) undertakings
customary in lease securitization transactions for the benefit of any
Leasing Subsidiary (whether undertaken in connection with a lease
securitization or other transaction involving any Leasing Subsidiary),
including Leasing Subsidiary Undertakings and guarantees thereof; (iv)
transfers of Lease Assets by MFSI to any Leasing Subsidiary (provided that
such transfer includes an assumption of MFSI's Indebtedness in respect of
such Lease Assets and a release of MFSI's liability therefor); (v) payment
of reasonable directors' fees and benefits, provided that the amount of
such fees and benefits paid to any Affiliate shall not exceed the amount
of such fees and benefits paid to any Person who is not otherwise an
Affiliate of the Company, (vi) Restricted Payments that are permitted
under Section 4.07 hereof; (vii) provision of officers' and directors'
indemnification and insurance in the ordinary course of business to the
extent permitted by applicable law, (viii) payment of employee salaries,
bonuses and employee benefits in the ordinary course of business
(including payment of commissions on behalf of any Leasing Subsidiary by
the Company or any of its Restricted Subsidiaries consistent with past
practices and in the ordinary course of business) and (ix) payment of
amounts owing under the existing lease between the Company and Cadence
Company and under any amendment or extension thereof so long as any such
amendment or extension is not disadvantageous to the Holders of the Notes
in any material respect.
Section 4.12. Liens.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any
Lien securing Indebtedness or trade payables on any asset now owned or
hereafter acquired, or any income or profits therefrom or assign or convey
any right to receive income therefrom, except Permitted Liens.
Section 4.13. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
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 the Company or
any such Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license
or franchise, or the corporate, partnership or other existence of any of
its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the
Notes.
Section 4.14. Line of Business.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any business other than the Permitted
Businesses, except to such extent as would not be material to the Company
and its Subsidiaries as a whole.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer (a "Change of Control Offer") to each Holder to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of each
Holder's Notes at a purchase price equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder stating: (1) that the Change of Control
Offer is being made pursuant to this Section 4.15 and that all Notes
tendered will be accepted for payment; (2) the purchase price and the
purchase date, which 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"); (3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date; (5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date; (6) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder
is withdrawing his election to have the Notes purchased; and (7) that
Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of Notes
in connection with a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes 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 Notes or portions thereof so tendered and (3) deliver or
cause to be delivered to the Trustee the Notes so accepted together with
an Officers' Certificate stating the aggregate principal amount of Notes
or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so tendered payment in an
amount equal to the purchase price for the Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered by such Holder, if any; provided, that
each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements
set forth in this Section 4.15 and Section 3.09 hereof and purchases all
Notes validly tendered and not withdrawn under such Change of Control
Offer.
Section 4.16. No Senior Subordinated Debt.
Notwithstanding the provisions of Section 4.09 hereof, (i) the Company
shall not incur, create, issue, assume, guarantee or otherwise become
liable for any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt and senior in any respect in right of payment
to the Notes, and (ii) no Subsidiary Guarantor shall incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
subordinated or junior in right of payment to any Guarantees of Senior
Debt and senior in any respect in right of payment to the Subsidiary
Guarantees.
Section 4.17. Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided
that the Company may enter into a sale and leaseback transaction if (i)
the Company could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction pursuant
to the Fixed Charge Coverage Ratio test set forth in the first paragraph
of Section 4.09 hereof and (b) incurred a Lien to secure such Indebtedness
pursuant to the provisions of Section 4.12 hereof, (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 Board of Directors
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 the Company applies the proceeds of such transaction in
compliance with, Section 4.10 hereof.
Section 4.18. Limitation On Issuances And Sales Of Equity Interests In
Wholly Owned Restricted Subsidiaries.
The Company (i) shall not, and shall not permit any Wholly Owned
Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Wholly Owned Restricted
Subsidiary of the Company to any Person (other than the Company or a
Wholly Owned Restricted Subsidiary of the Company), unless (a) such
transfer, conveyance, sale, lease or other disposition is of all the
Capital Stock of such Wholly Owned Restricted Subsidiary and (b) the cash
Net Proceeds from such transfer, conveyance, sale, lease or other
disposition are applied in accordance with Section 4.10 hereof and (ii)
will not permit any Wholly Owned Restricted Subsidiary of the Company to
issue any of its Equity Interests (other than, if necessary, shares of its
Capital Stock constituting directors' qualifying shares) to any Person
other than to the Company or a Wholly Owned Restricted Subsidiary of the
Company.
Section 4.19. Payments for Consent.
Neither the Company nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether
by way of interest, fee or otherwise, to any Holder of any Notes for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of the Indenture or the Notes unless such consideration is
offered to be paid or is paid to all Holders of the Notes that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
Section 4.20. Additional Subsidiary Guarantees
If the Company or any of its Restricted Subsidiaries shall, after the
date of this Indenture, transfer or cause to be transferred, including by
way of any Investment, in one or a series of transactions (whether or not
related), any assets, businesses, divisions, real property or equipment
having any aggregate fair market value (as determined in good faith by the
Board of Directors) in excess of $1.0 million to any Restricted Subsidiary
(other than any Leasing Subsidiary) that is not a Subsidiary Guarantor or
a Foreign Subsidiary, (ii) the Company or any of its Restricted
Subsidiaries shall acquire another Restricted Subsidiary other than a
Foreign Subsidiary having total assets with a fair market value (as
determined in good faith by the Board of Directors) in excess of $1.0
million, or (iii) if any Restricted Subsidiary other than a Foreign
Subsidiary shall incur Indebtedness in excess of $1.0 million, then the
Company shall, at the time of such transfer, acquisition or incurrence,
cause such Restricted Subsidiary that is the transferee of such transfer,
is so acquired, or incurs such Indebtedness (if not then a Subsidiary
Guarantor) to become a Subsidiary Guarantor by executing a Supplemental
Indenture in the form attached hereto as Exhibit E and deliver an Opinion
of Counsel to the Trustee to the effect that such Supplemental Indenture
has been duly authorized, executed and delivered by such Subsidiary and
constitutes a valid and binding obligation of such Subsidiary, enforceable
against such Subsidiary in accordance with its terms (subject to customary
exceptions); provided, that: (i) the Subsidiary Guarantee of such
Subsidiary Guarantor may be subordinated to Senior Debt of such Subsidiary
Guarantor; and (ii) such Restricted Subsidiary shall not be required to
issue a Subsidiary Guarantee if such Restricted Subsidiary is a Foreign
Subsidiary and such Foreign Subsidiary has not guaranteed and does not
guarantee any other Indebtedness of the Company or any other Restricted
Subsidiary of the Company that is not a Foreign Subsidiary.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation) or sell, assign, transfer,
lease, 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) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, 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 the Company) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company pursuant to a
supplemental indenture under the Notes, the Registration Rights Agreement
and this Indenture in a form 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 the Company with or into a
Wholly Owned Restricted Subsidiary of the Company, the Company or the
entity or Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made shall, 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 Fixed Charge Coverage Ratio test set forth in
clause (a) of the first paragraph of Section 4.09 hereof.
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 the Company in accordance with Section 5.01 hereof, the
successor corporation formed by such consolidation or into or with which
the Company 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 the Company), and may exercise every
right and power of the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from
the obligation to pay the principal of and interest on the Notes except in
the case of a sale of all of the Company's 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) the Company defaults in the payment when due of interest on, or
Liquidated Damages with respect to, the Notes (whether or not prohibited
by Article 10 hereof) and such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Notes (whether or not prohibited by Article 10
hereof) when the same becomes due and payable at maturity, upon redemption
(including in connection with an offer to purchase) or otherwise;
(c) the Company or any of its Subsidiaries fails to comply with any
of the provisions of Section 4.07, 4.09, 4.10, 4.15 or 5.01 hereof;
(d) the Company or any of its Subsidiaries fails to observe or
perform any other covenant, representation, warranty or other agreement in
this Indenture or the Notes for 60 days after notice to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding voting as a single class;
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Subsidiaries), whether such Indebtedness or guarantee now exists,
or is created after the date of this Indenture, which default (a) is
caused by a failure to pay principal of or premium, if any, or interest on
such Indebtedness prior to the expiration of the grace period provided in
such Indebtedness on the date of such default (a "Payment Default") or (b)
results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $10.0 million or more;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company
or any of its Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary and such judgment or judgments remain undischarged
for a period (during which execution shall not be effectively stayed) of
60 days, provided that the aggregate of all such undischarged judgments
exceeds $5.0 million;
(g) except as permitted by this Indenture, any Subsidiary Guarantee
is held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Subsidiary
Guarantor, or any Person acting on behalf of any Subsidiary Guarantor,
shall deny or disaffirm its obligations under such Subsidiary Guarantor's
Subsidiary Guarantee;
(h) the Company or any of its Significant Subsidiaries 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
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(vi) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case;
(vii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries; or
(viii) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02. Acceleration.
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
Notes may declare all the Notes to be due and payable immediately;
provided, that so long as any Indebtedness is outstanding under the Senior
Credit Agreement, such acceleration shall not be effective until the
earlier of (i) an acceleration under the Senior Credit Agreement or (ii)
five Business Days after receipt by the Company and the Representative
under the Senior Credit Agreement of written notice of such acceleration
of the Notes. Subject to the preceding sentence, the Notes shall become
due and payable immediately upon any such declaration. In the event of a
declaration of acceleration because an Event of Default set forth in
clause (e) of Section 6.01 hereof has occurred and is continuing, such
declaration of acceleration shall be automatically annulled if (A) the
missed payments in respect of the applicable Indebtedness have been paid
or if the holders of the Indebtedness that is subject to acceleration have
rescinded their declaration of acceleration, in each case within 60 days
thereof and (B) all existing Events of Default, except non-payment of
principal or interest which have become due solely because of the
acceleration of the Notes, have been cured or waived. Notwithstanding
the foregoing, if an Event of Default specified in clause ( g) or (h) of
Section 6.01 hereof occurs with respect to the Company, any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary, all outstanding Notes
shall be due and payable immediately without further action or notice.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may on behalf of all of
the Holders rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events
of Default (except nonpayment of principal, interest or premium that has
become due solely because of the acceleration) have been cured or waived.
If an Event of Default occurs on or after March 1, 2003 by reason
of any willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding payment of the premium that
the Company would have had to pay if the Company then had elected to
redeem the Notes pursuant to Section 3.07 hereof, then, upon acceleration
of the Notes, an equivalent premium shall also become and be immediately
due and payable, to the extent permitted by law, anything in this
Indenture or in the Notes to the contrary notwithstanding. If an Event of
Default occurs prior to March 1, 2003 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes prior to
such date, then, upon acceleration of the Notes, an additional premium
shall also become and be immediately due and payable in an amount, for
each of the years beginning on March 1 of the years set forth below, as
set forth below (expressed as a percentage of the principal amount to the
date of payment that would otherwise be due but for the provisions of this
sentence):
Year Percentage
1998 110.083%
1999 108.750%
2001 107.292%
2002 105.833%
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 Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note 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 Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes 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, premium and
Liquidated Damages, if any, or interest on, the Notes (including in
connection with an offer to purchase) (provided, however, that the Holders
of a majority in aggregate principal amount of the then outstanding Notes
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
Notes 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
Notes or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note 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 Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes 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 Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority
over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (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 Company for the
whole amount of principal of, premium and Liquidated Damages, if any, and
interest remaining unpaid on the Notes 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 Notes allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes),
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 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 Notes 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 Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium and Liquidated
Damages, if any and interest, respectively; and
Third: to the Company 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 Notes 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 Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
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:
(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), and (c) of this Section.
(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
Company. 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 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 the Company shall be sufficient
if signed by an Officer of the Company.
(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.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company 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
Notes, it shall not be accountable for the Company's use of the proceeds
from the Notes or any money paid to the Company or upon the Company's
direction 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 Notes or any other
document in connection with the sale of the Notes 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 Notes 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 Note, 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 Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA Section 313(b)(2). The Trustee
shall also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on
any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company 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 Company 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 Company 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 Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company 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 Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not
be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal
and interest on particular Notes. 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 Section 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 Company. The Holders of
Notes of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing.
The Company 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 Company 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 Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of
the then outstanding Notes 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 Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. 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 Notes. 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 Company's 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 (except with respect to
Firstar Trust Company) 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 Sections 310(a)(1), (2) and (5). The Trustee is
subject to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect
to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article
8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company 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 Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes, 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
Notes and this Indenture (and the Trustee, on demand of and at the expense
of the Company, 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 Notes 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
Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article 2 and Section 4.02 hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Company's obligations in connection therewith and (d) this Article
Eight. Subject to compliance with this Article Eight, the Company may
exercise its 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 Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company 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
4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16,
4.17, 4.18, 4.19 and 4.20 hereof with respect to the outstanding Notes on
and after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes 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 Notes shall not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by 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 Notes shall be unaffected thereby.
In addition, upon the Company's 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 Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States 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 and
Liquidated Damages, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date, as
the case may be;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, 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 Notes 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
Company 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 Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(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 Notes 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;
(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 (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the deposit
and assuming no Holder of Notes is an insider of the Company, 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 Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or 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 Notes shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Company acting as Paying Agent) as the Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee 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 Notes.
Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company 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.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of,
premium, if any, or interest on any Note and remaining unclaimed for two
years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder
of such Note shall thereafter, as a secured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once,
in 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 Company.
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 Company's obligations
under this Indenture and the Notes 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 Company makes any payment of principal
of, premium, if any, or interest on any Note following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of such Notes 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 Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture, the Subsidiary Guarantees or the Notes without the consent of
any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes 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 Company's or a Subsidiary
Guarantor's obligations to the Holders of the Notes by a successor to the
Company or a Subsidiary Guarantor pursuant to Article 5 or Article 11
hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Notes;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(f) to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Indenture as of the date hereof; or
(g) to allow any Subsidiary Guarantor to execute a supplemental
indenture and/or a Subsidiary Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors 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 Company
and the Subsidiary Guarantors 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 Notes.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including Sections 3.09,
4.10 and 4.15 hereof), the Subsidiary Guarantees and the Notes may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes (including Additional Notes, if
any) then outstanding voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender
offer or exchange offer for, the Notes), 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 Notes, except a payment default resulting from
an acceleration that has been rescinded) or compliance with any provision
of this Indenture, the Subsidiary Guarantees or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the
then outstanding Notes (including Additional Notes, if any) voting as a
single class (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Section 2.08
hereof shall determine which Notes are considered to be "outstanding" for
purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors 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 Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Company 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 Notes
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 Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver.
Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any 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 Notes (including Additional Notes, if any) then outstanding voting as
a single class may waive compliance in a particular instance by the
Company with any provision of this Indenture or the Notes. However,
without the consent of each Holder affected, an amendment or waiver under
this Section 9.02 may not (with respect to any Notes held by a non-
consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter or waive any of the provisions with respect to the redemption of
the Notes except as provided above with respect to Sections 3.09, 4.10 and
4.15 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including
Additional Notes, if any) and a waiver of the payment default that
resulted from such (e) make any Note payable in money other than that
stated in the Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes; or
(g) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
Notwithstanding anything to the contrary contained herein, any
amendment to the provisions of Article 10 of this Indenture shall require
the consent of the Holders of at least 66 2/3% in aggregate principal
amount of the Notes then outstanding if such amendment would adversely
affect the rights of Holders of Notes.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes 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 Note is a continuing consent by the Holder
of a Note and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on any Note. However, any such Holder of a
Note or subsequent Holder of a Note may revoke the consent as to its Note
if the Trustee receives written notice of revocation before the date the
waiver, 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 Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or
waiver.
Section 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 Company may not sign an amendment or supplemental
Indenture until the Board of Directors 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.
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by, and all Obligations relating to, the
Notes are subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment in full in cash
or Cash Equivalents of all Senior Debt (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Debt.
Section 10.02. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation
or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or
its property, in an assignment for the benefit of creditors or any
marshalling of the Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment
in full in cash or Cash Equivalents of all Obligations in respect of such
Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt) before
Holders of the Notes shall be entitled to receive any payment of cash,
properties or securities with respect to the Notes (except that Holders
may receive and retain (i) Permitted Junior Securities and (ii) payments
and other distributions made from any defeasance trust created pursuant to
Section 8.01 hereof); and
(2) until all Obligations with respect to Senior Debt (as
provided in subsection (1) above) are paid in full in cash or Cash
Equivalents, any distribution to which Holders would be entitled but for
this Article 10 shall be made to holders of Senior Debt (except that
Holders of Notes may receive and retain (i) Permitted Junior Securities
and (ii) payments and other distributions made from any defeasance trust
created pursuant to Section 8.01 hereof), as their interests may appear.
Section 10.03. Payment On Change In Control
Notwithstanding the provisions of Section 4.15 hereof, if the
Company then has Obligations under Senior Debt whose terms do not permit
the repurchase of Notes pursuant to any Change of Control Offer, the
Company shall not, directly or indirectly, repurchase any Notes tendered
to the Company pursuant to a Change of Control Offer unless the Company
has, within 90 days of the Change of Control, paid in full in cash or Cash
Equivalents all Obligations relating to such Senior Debt or obtained the
requisite consent from the holders of such Senior Debt for the repurchase
of Notes so tendered. Notwithstanding the provisions of this Section
10.03, a failure to repurchase Notes as required pursuant to Section 4.15
shall be an Event of Default under Section 6.01(b) hereof.
Section 10.04. Default on Significant Senior Debt.
The Company may not, directly or indirectly, make any payment or
distribution to the Trustee or any Holder in respect of Obligations with
respect to the Notes and may not acquire from the Trustee or any Holder
any Notes for cash or property (other than (a) Permitted Junior Securities
and (b) payments and other distributions made from any defeasance trust
created pursuant to Section 8.01 hereof) until all principal and other
Obligations with respect to the Significant Senior Debt (in the case of
clause (i)) or Designated Senior Debt (in the case of clause (ii)), have
been paid in full if:
(i) a default in the payment of any principal of, premium, if
any, interest or other Obligations with respect to Significant Senior
Debt occurs and is continuing; or
(ii) a default, other than a payment default, on any Designated
Senior Debt occurs and is continuing that then permits holders of such
Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage Notice") from a
Person (or their Representative, if applicable) who may give it
pursuant to Section 10.13 hereof. If the Trustee receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice shall
be effective for purposes of this Section unless and until (i) at
least 360 days shall have elapsed since the initial effectiveness of
the immediately prior Payment Blockage Notice and (ii) all scheduled
payments of principal, premium, if any, Liquidated Damages, if any,
and interest on the Notes that have come due have been paid in full in
cash. No nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Payment Blockage Notice
unless such default shall have been cured or waived for a period of
not less than 180 days.
The Company may and shall resume payments on and distributions in
respect of the Notes and may acquire them upon the earlier of:
(1) the date upon which the default referred to in Section
10.04(i) or (ii) hereof is cured or waived, or
(2) in the case of a default referred to in Section 10.04(ii)
hereof, the 179th day after the receipt by the Trustee of the applicable
Payment Blockage Notice if the maturity of such Designated Senior Debt has
not been accelerated,
if this Article 10 otherwise permits the payment, distribution or
acquisition at the time of such payment or acquisition.
Section 10.05 Acceleration of Securities.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
Section 10.06. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment
of any Obligations with respect to the Notes at a time when such payment
is prohibited by Section 10.04 hereof, such payment shall be held by the
Trustee or such Holder, in trust for the benefit of, and shall be paid
forthwith over and delivered, upon written request, to, the holders of
Significant Senior Debt or Designated Senior Debt as their interests may
appear or their Representative under the indenture or other agreement (if
any) pursuant to which such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to such Senior Debt remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to
or on behalf of Holders or the Company or any other Person money or assets
to which any holders of Senior Debt shall be entitled by virtue of this
Article 10, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.
Section 10.07. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent
of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article 10, but
failure to give such notice shall not affect the subordination of the
Notes to the Senior Debt as provided in this Article 10.
Section 10.08. Subrogation.
After all Senior Debt is paid in full in cash and Cash Equivalents
and until the Notes are paid in full, Holders of Notes shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the
Notes) to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions otherwise
payable to the Holders of Notes have been applied to the payment of Senior
Debt. A distribution made under this Article 10 to holders of Senior Debt
that otherwise would have been made to Holders of Notes is not, as between
the Company and Holders, a payment by the Company on the Notes.
Section 10.09. Relative Rights.
This Article 10 defines the relative rights of Holders of Notes
and holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of Notes and other
creditors of the Company other than the rights of Holders in relation to
holders of Senior Debt; or
(3) prevent the Trustee or any Holder of Notes from exercising
its available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay principal
of or interest on a Note on the due date, the failure is still a Default
or Event of Default.
Section 10.10. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination
of the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
Section 10.11. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred
to in this Article 10, the Trustee and the Holders of Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to
the Trustee or to the Holders of Notes for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the
Senior Debt and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 10.
Section 10.12. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of
any payment or distribution by the Trustee, and the Trustee and the Paying
Agent may continue to make payments on the Notes, unless the Trustee shall
have received at its Corporate Trust Office at least three Business Days
prior to the date of such payment written notice of facts that would cause
the payment of any Obligations with respect to the Notes to violate this
Article 10. Only the Company (but only with respect to a default
described in Section 10.04(i) hereof) or a Representative may give the
notice. Nothing in this Article 10 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
Section 10.13. Authorization to Effect Subordination.
Each Holder of Notes, by the Holder's acceptance thereof,
authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
as provided in this Article 10, and appoints the Trustee to act as such
Holder's attorney-in-fact for any and all such purposes. If the Trustee
does not file a proper proof of claim or proof of debt in the form
required in any proceeding referred to in Section 6.09 hereof at least 30
days before the expiration of the time to file such claim, the
Representative(s) of Designated Senior Debt are hereby authorized to file
an appropriate claim for and on behalf of the Holders of the Notes.
Section 10.14. Amendments.
The provisions of this Article 10 shall not be amended or modified
without the written consent of the holders of all Senior Debt.
ARTICLE 11.
SUBSIDIARY GUARANTEES
Section 11.01. Guarantee.
Subject to this Article 11, each of the Subsidiary Guarantors
hereby, jointly and severally, unconditionally guarantees to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that: (a) the principal of and interest
on the Notes will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations,
that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason,
the Subsidiary Guarantors shall be jointly and severally obligated to pay
the same immediately. Each Subsidiary Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
The Subsidiary Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the
Notes with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenant that this Subsidiary Guarantee
shall not be discharged except by complete performance of the obligations
contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Subsidiary Guarantors or any custodian,
trustee, liquidator or other similar official acting in relation to either
the Company or the Subsidiary Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Subsidiary Guarantor further agrees that, as
between the Subsidiary Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for
the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any declaration
of acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) shall forthwith become due
and payable by the Subsidiary Guarantors for the purpose of this
Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to
seek contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the
Guarantee.
Section 11.02. Subordination of Subsidiary Guarantee.
The Obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee pursuant to this Article 11 shall be junior and subordinated to
the Senior Debt of such Subsidiary Guarantor on the same basis as the
Notes are junior and subordinated to Senior Debt of the Company. For the
purposes of the foregoing sentence, the Trustee and the Holders shall have
the right to receive and/or retain payments by any of the Subsidiary
Guarantors only at such times as they may receive and/or retain payments
in respect of the Notes pursuant to this Indenture, including Article 10.
Section 11.03. Limitation on Subsidiary Guarantor Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that
the Subsidiary Guarantee of such Subsidiary Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any
Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Subsidiary Guarantors hereby irrevocably agree that
the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee and this Article 11 shall be limited to the maximum amount as
will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Subsidiary Guarantor that are relevant under
such laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under this Article 11, result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting
a fraudulent transfer or conveyance.
Section 11.04. Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 11.01,
each Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form included in Exhibit E shall be
endorsed by an Officer of such Subsidiary Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall
be executed on behalf of such Subsidiary Guarantor by its President or one
of its Vice Presidents.
Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 11.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary
Guarantee set forth in this Indenture on behalf of the Subsidiary
Guarantors.
In the event that the Company creates or acquires any new
Subsidiaries subsequent to the date of this Indenture, if required by
Section 4.20 hereof, the Company shall cause such Subsidiaries to execute
supplemental indentures to this Indenture and Subsidiary Guarantees in
accordance with Section 4.20 hereof and this Article 11, to the extent
applicable.
Section 11.05. Subsidiary Guarantors May Consolidate, etc., on
Certain Terms.
No Subsidiary Guarantor may consolidate with or merge with or into
(whether or not such Subsidiary Guarantor is the surviving Person) another
Person whether or not affiliated with such Subsidiary Guarantor unless:
(a) subject to this Section 11.05, the Person formed by or surviving
any such consolidation or merger (if other than a Subsidiary Guarantor or
the Company) unconditionally assumes all the obligations of such
Subsidiary Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the Notes, the
Indenture, the Registration Rights Agreement and the Subsidiary Guarantee
on the terms set forth herein or therein;
(b) immediately after giving effect to such transaction, no Default
or Event of Default exists; and
(c) the Company would be permitted, immediately after giving effect
to such transaction, to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Subsidiary Guarantee endorsed upon the Notes and the due
and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Subsidiary Guarantor, such successor
Person shall succeed to and be substituted for the Subsidiary Guarantor
with the same effect as if it had been named herein as a Subsidiary
Guarantor. Such successor Person thereupon may cause to be signed any or
all of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All the Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under
this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the execution
hereof.
Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses (a) and (b) above, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger
of a Subsidiary Guarantor with or into the Company or another Subsidiary
Guarantor, or shall prevent any sale or conveyance of the property of a
Subsidiary Guarantor as an entirety or substantially as an entirety to the
Company or another Subsidiary Guarantor.
Section 11.06. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the assets
of any Subsidiary Guarantor, by way of merger, consolidation or otherwise,
or a sale or other disposition of all of the capital stock of any
Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a
sale or other disposition, by way of merger, consolidation or otherwise,
of all of the capital stock of such Subsidiary Guarantor) or the
corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Subsidiary
Guarantor) will be released and relieved of any obligations under its
Subsidiary Guarantee; provided that the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of
this Indenture, including without limitation Section 4.10 hereof. Upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was
made by the Company in accordance with the applicable provisions of this
Indenture, including without limitation Section 4.10 hereof, the Trustee
shall execute any documents reasonably required in order to evidence the
release of any Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its obligations under
its Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of
any Subsidiary Guarantor under this Indenture as provided in this Article
11.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control.
Section 12.02. Notices.
Any notice or communication by the Company, any Subsidiary
Guarantor 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 Company and/or any Subsidiary Guarantor:
Oshkosh Truck Corporation
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxxx & Xxxxxxx
Firstar Center, 000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx III
If to the Trustee:
Firstar Trust Company
0000 Xxxxx Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Department Manager
The Company, any Subsidiary Guarantor 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 Section 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 Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders
of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company 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 12.05 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) if requested by the Trustee, an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been
satisfied.
Section 12.05. 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 Section 314(a)(4)) shall comply with
the provisions of TIA Section 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 12.06. 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 12.07. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or such
Subsidiary Guarantor under the Notes, the Subsidiary Guarantees, this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES 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 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.10. Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 12.12. 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 12.13. 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]
SIGNATURES
Dated as of February 26, 1998
OSHKOSH TRUCK CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
MCNEILUS TRUCK & MANUFACTURING, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
IOWA CONTRACT FABRICATORS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
XXXXXXXX FABRICATORS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
KENSETT FABRICATORS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
MCNEILUS COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
MCNEILUS FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
XXXXXX MANUFACTURING, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
SUMMIT PERFORMANCE SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
FIRSTAR TRUST COMPANY, as Trustee
BY: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
BY: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Assistant Secretary
EXHIBIT A-1
(Face of 144A/IAI Note)
CUSIP/CINS ______________
8 3/4% Senior Subordinated Notes due 2008
No. _____ $____________
OSHKOSH TRUCK CORPORATION
promises to pay to _____________________________________________________
or registered assigns,
the principal sum of _______________________________________________
Dollars on March 1, 2008.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
DATED: ____________, 199___
OSHKOSH TRUCK CORPORATION
BY:
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
FIRSTAR TRUST COMPANY,
as Trustee
By:
(Back of Note)
8 3/4% Senior Subordinated Notes due 2008
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) 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 NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF
THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1) BY THE INITIAL PURCHASER (a) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (d) TO
THE COMPANY, (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, AND (2) BY SUBSEQUENT PURCHASERS, AS SET FORTH IN (1)(a) THROUGH (e)
ABOVE, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE, NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED
HEREBY.1
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Oshkosh Truck Corporation, a Wisconsin corporation
(the "Company"), promises to pay interest on the principal amount of this
Note at 8 3/4% per annum from the date hereof until maturity and shall pay
the Liquidated Damages payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and
Liquidated Damages semi-annually on March 1 and September 1 of each year,
or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). Interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there
is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be September 1, 1998. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand 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
and Liquidated Damages (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 Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the February 15 or
August 15 next preceding the Interest Payment Date, even if such Notes 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 Notes will be payable as to principal, premium
and Liquidated Damages, if any, and interest at the office or agency of
the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest
and Liquidated Damages 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, premium and Liquidated Damages on,
all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company 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, Firstar Trust Company,
the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of February 26, 1998 ("Indenture") between the Company and the
Trustee. The terms of the Notes 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 Sections 77aaa-77bbbb). The Notes 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 Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Notes
are general unsecured obligations of the Company limited to $150.0 million
in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph
5, the Company shall not have the option to redeem the Notes prior to
March 1, 2003. Thereafter, the Company shall have the option to redeem
the Notes, 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 and
Liquidated Damages thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on March 1 of the years indicated
below:
Year Percentage
2003 104.375%
2004 102.917%
2005 101.458%
2006 and thereafter 100.000 %
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to March 1, 2001, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount
of the Initial Notes at a redemption price equal to 108.750% of the
principal amount thereof, plus accrued and unpaid Liquidated Damages
thereon, if any, to the applicable redemption date, with the net cash
proceeds of one or more public offerings of common stock of the Company;
provided that Notes in an aggregate principal amount of at least 65% of
the aggregate principal amount of the Notes issued on the date of the
Indenture remain outstanding immediately after the occurrence of such
redemption (excluding Initial Notes held by the Company and its
Subsidiaries); and provided, further, that such redemption shall occur
within 45 days of the date of the closing of such public offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of each
Holder's Notes 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 30 days
following any Change of Control, the Company shall mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company shall commence an offer (pro
rata in proportion to the principal amount (or accreted value, if
applicable) outstanding in respect of any Asset Sale offer required by the
terms of any pari passu Indebtedness incurred in accordance with this
Indenture) to all Holders of Notes (as "Asset Sale Offer") pursuant to
Section 3.09 of the Indenture to purchase the maximum principal amount of
Notes (including any Additional Notes) that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest, 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 Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use such deficiency for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount
of Notes surrendered by Holders thereof (and any pari passu Indebtedness
as aforesaid) exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes to be purchased on a pro rata basis. Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to
have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
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 Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
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 the Company may require a Holder
to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, the Company need not
exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
10. SUBORDINATION. The Notes are subordinated in right of
payment, to the extent and in the manner provided in Article 10 of the
Indenture, to the prior payment in full in cash or Cash Equivalents of all
Senior Debt. To the extent provided in the Indenture, Senior Debt must be
paid before the Securities may be paid. The Company agrees and each
Holder of Notes by accepting a Note consents and agrees to the
subordination provided in the Indenture and authorizes the Trustee to give
it effect.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Subsidiary Guarantees or the Notes may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes and Additional
Notes, if any, voting as a single class, and any existing default or
compliance with any provision of the Indenture, the Subsidiary Guarantees
or the Notes may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes and Additional Notes, if
any, voting as a single class. Without the consent of any Holder of a
Note, the Indenture, the Subsidiary Guarantees or the Notes may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to provide
for uncertificated Notes in addition to or in place of certificated Notes,
to provide for the assumption of the Company's or Subsidiary Guarantor's
obligations to Holders of the Notes in case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to
the Holders of the Notes 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, to provide
for the Issuance of Additional Notes in accordance with the limitations
set forth in the Indenture, or to allow any Subsidiary Guarantor to
execute a supplemental indenture to the Indenture and/or a Subsidiary
Guarantee with respect to the Notes.
13. DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest or Liquidated
Damages on the Notes; (ii) default in payment when due of principal of or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to
purchase) or otherwise, (iii) failure by the Company to comply with
Section 4.07, 4.09, 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by
the Company for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class to
comply with certain other agreements in the Indenture or the Notes; (v)
default under certain other agreements relating to Indebtedness of the
Company which default results in the acceleration of such Indebtedness
prior to its express maturity; (vi) certain final judgments for the
payment of money that remain undischarged for a period of 60 days; (vii)
except as permitted by the Indenture, any Subsidiary Guarantee shall be
held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Subsidiary
Guarantor or any Person acting on its behalf shall deny or disaffirm its
obligations under such Subsidiary Guarantor's Subsidiary Guarantee; and
(viii) certain events of bankruptcy or insolvency with respect to the
Company 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 Notes may declare all the Notes
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 Notes will become due and payable without further action
or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders of the Notes 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 Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes 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 Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and
the Company 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.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company or of any Subsidiary
Guarantor, as such, shall not have any liability for any obligations of
the Company under the Notes 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 Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Notes.
16. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. 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. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED CERTIFICATED NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes
and Restricted Certificated Notes shall have all the rights set forth in
the Registration Rights Agreement dated as of February 26, 1998, between
the Company and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Notes and 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 Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed
thereon.
The Company 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:
Oshkosh Truck Corporation
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note 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 Note on the books of the Company. The agent may
substitute another to act for him.
__________________________________________________________________________
Date: _________________________ Your Signature: ________________________
(Sign exactly as your name
appears on the Note)
SIGNATURE GUARANTEE
_____________________________________
Signatures must be guaranteed by an "eligible
guarantor Institution" meeting the requirements of the
Registrar, which requirements include membership or
participation in the Security transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934,
as amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 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 Note purchased by
the Company 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 face of this Note)
Tax Identification No.:
SIGNATURE GUARANTEE
_____________________________________
Signatures must be guaranteed by an "eligible
guarantor Institution" meeting the requirements of the
Registrar, which requirements include membership or
participation in the Security transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934,
as amended.
SCHEDULE OF EXCHANGES OF RULE 144A/ACCREDITED INVESTOR GLOBAL NOTE
The following exchanges of a part of this Regulation S Global Note
for an interest in another Global Note, or of other Restricted Global
Notes for an interest in this Regulation S Global Note, have been made:
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Global authorized
Principal Principal Note officer of
Amount of amount of following Trustee or
Date of this Global this Global such decrease Note
Exchange Note Note (or increase) Custodian
EXHIBIT A-2
(Face of Regulation S Global Note)
CUSIP/CINS _________
8 3/4% Senior Subordinated Notes due 2008
No. _____ $___________
OSHKOSH TRUCK CORPORATION
promises to pay to _____________________________________________________
or registered assigns,
the principal sum of _________________________________________________
Dollars on March 1, 2008.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Dated: ____________________, 199 ___
OSHKOSH TRUCK CORPORATION
By:__________________________________
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
FIRSTAR TRUST COMPANY,
as Trustee
By: __________________________
(Back of Regulation S Global Note)
8 3/4 % Senior Subordinated Notes due 2008
THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS REGULATION S GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) 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 NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF
THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1) BY THE INITIAL PURCHASER (a) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (d) TO
THE COMPANY, (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, AND (2) BY SUBSEQUENT PURCHASERS, AS SET FORTH IN (1)(a) THROUGH (e)
ABOVE, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE, NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED
HEREBY.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Oshkosh Truck Corporation, a Wisconsin corporation
(the "Company"), promises to pay interest on the principal amount of this
Note at 8 3/4% per annum from the date hereof until maturity and shall pay
the Liquidated Damages payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and
Liquidated Damages semi-annually on March 1 and September 1 of each year,
or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). Interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there
is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be September 1, 1998. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand 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
and Liquidated Damages (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 Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the February 15 or
August 15 next preceding the Interest Payment Date, even if such Notes 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 Notes will be payable as to principal, premium,
interest and Liquidated Damages at the office or agency of the Company
maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest and Liquidated
Damages 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 next day funds will be required with respect to principal of
and interest, premium and Liquidated Damages on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer
instructions to the Company 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, Firstar Trust Company,
the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of February 26, 1998 ("Indenture") between the Company and the
Trustee. The terms of the Notes 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 SectionSection 77aaa-77bbbb). The Notes
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 Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Notes
are secured obligations of the Company limited to $150.0 million in
aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph
5, the Company shall not have the option to redeem the Notes prior to
March 1, 2003. Thereafter, the Company shall have the option to redeem
the Notes, 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 and
Liquidated Damages thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on March 1 of the years indicated
below:
Year Percentage
2003 104.375%
2004 102.917%
2005 101.458%
2006 and thereafter 100.000 %
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to March 1, 2001, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount
of the Initial Notes at a redemption price equal to 108.750% of the
principal amount thereof, plus accrued and unpaid Liquidated Damages
thereon, if any, to the applicable redemption date, with the net cash
proceeds of one or more public offerings of common stock of the Company;
provided that Notes in an aggregate principal amount of at least 65% of
the aggregate principal amount of the Notes issued on the date of the
Indenture remain outstanding immediately after the occurrence of such
redemption (excluding Initial Notes held by the Company and its
Subsidiaries); and provided, further, that such redemption shall occur
within 45 days of the date of the closing of such public offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of each
Holder's Notes 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 30 days
following any Change of Control, the Company shall mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company shall commence an offer (pro
rata in proportion to the principal amount (or accreted value, if
applicable) outstanding in respect of any Asset Sale offer required by the
terms of any pari passu Indebtedness incurred in accordance with this
Indenture) to all Holders of Notes (as "Asset Sale Offer") pursuant to
Section 3.09 of the Indenture to purchase the maximum principal amount of
Notes (including any Additional Notes) that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest, 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 Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use such deficiency for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount
of Notes surrendered by Holders thereof (and any pari passu Indebtedness
as aforesaid) exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes to be purchased on a pro rata basis. Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to
have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
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 Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
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 the Company may require a Holder
to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, it need not exchange or
register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
This Regulation S Global Note is exchangeable in whole or in part
for one or more Global Notes only (i) on or after the termination of the
40-day restricted 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 Global Note for one or more Global Notes, the Trustee shall
cancel this Regulation S Global Note.
10. SUBORDINATION. The Notes are subordinated in right of
payment, to the extent and in the manner provided in Article 10 of the
Indenture, to the prior payment in full in cash or Cash Equivalents of all
Senior Debt. To the extent provided in the Indenture, Senior Debt must be
paid before the Notes may be paid. The Company agrees and each Holder of
Notes by accepting a Note consents and agrees to the subordination
provided in the Indenture and authorizes the Trustee to give it effect.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of
the then outstanding Notes, and any existing default or compliance with
any provision of the Indenture or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder of a Note, the Indenture or the
Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in
place of certificated Notes, to provide for the assumption of the
Company's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights
or benefits to the Holders of the Notes 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.
13. DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest or Liquidated
Damages on the Notes; (ii) default in payment when due of principal of or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to
purchase) or otherwise, (iii) failure by the Company to comply with
Section 4.07, 4.09, 4.10, 4.15 or 5.01 of the Indenture, which failure
remains uncured for 30 days; (iv) failure by the Company for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding to comply with certain
other agreements in the Indenture, the Notes or the Pledge Agreement; (v)
default under certain other agreements relating to Indebtedness of the
Company which default results in the acceleration of such Indebtedness
prior to its express maturity; (vi) certain final judgments for the
payment of money that remain undischarged for a period of 60 days; (vii)
the breach of certain covenants in the Pledge Agreement or the Pledge
Agreement shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect; and
(viii) certain events of bankruptcy or insolvency with respect to the
Company 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 Notes may declare all the Notes
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 Notes will become due and payable without further action
or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders of the Notes 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 Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes 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 Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and
the Company 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.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company or of any Subsidiary
Guarantor, as such, shall not have any liability for any obligations of
the Company or such Subsidiary Guarantor under the Notes, the Subsidiary
Guarantees 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 Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
16. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. 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. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED CERTIFICATED NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes
and Restricted Certificated Notes shall have all the rights set forth in
the Exchange Registration Rights Agreement dated as of February 26, 1998,
between the Company and the parties named on the signature pages thereof
or, in the case of Additional Notes, Holders of Restricted Global Notes
and Restricted Certificated Notes shall have the rights set forth in one
or more registration rights agreements, if any, between the Company and
the other parties thereto, relating to rights given by the Company to the
purchasers of any Additional Notes (collectively, the "Registration Rights
Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Notes and 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 Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed
thereon.
The Company 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:
Oshkosh Truck Corporation
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note 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 Note on the books of the Company. The agent may
substitute another to act for him.
_________________________________________________________________________
Date: __________________________ Your Signature: _______________________
(Sign exactly as your name appears on the
Note)
SIGNATURE GUARANTEE
___________________________________
Signatures must be guaranteed by an "eligible
guarantor Institution" meeting the requirements of the
Registrar, which requirements include membership or
participation in the Security transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934,
as amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 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 Note purchased by
the Company 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
face of this Note)
Tax Identification No.:
SIGNATURE GUARANTEE
__________________________________
Signatures must be guaranteed by an "eligible
guarantor Institution" meeting the requirements of the
Registrar, which requirements include membership or
participation in the Security transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934,
as amended.
SCHEDULE OF EXCHANGES OF REGULATION S GLOBAL NOTE
The following exchanges of a part of this Regulation S Global Note
for an interest in another Global Note, or of other Restricted Global
Notes for an interest in this Regulation S Global Note, have been made:
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Global authorized
Principal Principal Note officer of
Amount of amount of following Trustee or
Date of this Global this Global such decrease Note
Exchange Note Note (or increase) Custodian
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Oshkosh Truck Corporation
P. O. Box 2566
Oshkosh, WI 54903
[Registrar address block]
Re: 8 3/4% Senior Subordinated Notes Due 2008
Reference is hereby made to the Indenture, dated as of [insert
date] (the "Indenture"), between Oshkosh Truck Corporation, as issuer (the
"Company"), the Subsidiary Guarantors (as defined therein), and Firstar
Trust Company, 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 Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[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 144A Global Note or a Certificated Note 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 Note is being
transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Certificated Note 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 Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the 144A Global Note and/or the Certificated Note 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 Note,]903(c)(3) the Regulation S
Global Note or a Certificated Note pursuant to Regulation S. The Transfer
is being effected pursuant to and in accordance 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 [and/,] (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
Restricted 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)].903(c)(2) or (3) Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the
Regulation S Global and/or the Certificated Note and in the Indenture and
the Securities Act.
3. / / Check and complete if Transferee will take delivery of a
beneficial interest in a Certificated Note 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 Notes and Restricted
Certificated Notes 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 the Company 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;
or
(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 Note or
Restricted Certificated Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by
the Transferee in the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes 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 Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Certificated Notes and in the Indenture and the Securities Act.
4. / / Check if Transferee will take delivery of a beneficial interest
in an Unrestricted Global Note or of an Unrestricted Certificated Note.
(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 Note will no longer be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Certificated Notes 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 Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Certificated Notes 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 Note will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Certificated Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
______________________________________
[Insert Name of Transferor]
By: __________________________________
Name:
Title:
Dted: ____________, ____
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) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Note (CUSIP ), or
(iii) / / IAI Global Note (CUSIP ), or
(b) / / a Restricted Certificated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Note (CUSIP ), or
(iii) / / IAI Global Note (CUSIP ), or
(iv) / / Unrestricted Global Note (CUSIP ); or
(b) / / a Restricted Certificated Note; or
(c) / / an Unrestricted Certificated Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Oshkosh Truck Corporation
P. O. Box 2566
Oshkosh, WI 54903
[Registrar address block]
Re: 8 3/4% Senior Subordinated Notes Due 2008
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of [insert
date] (the "Indenture"), between Oshkosh Truck Corporation, as issuer (the
"Company"), the Subsidiary Guarantors (as defined therein), and Firstar
Trust Company, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
Reference is hereby made to the Indenture, dated as of [insert
date] (the "Indenture"), between [insert Company], as issuer (the
"Company"), and [insert Trustee], 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
Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Certificated Notes or Beneficial
Interests in a Restricted Global Note for Unrestricted Certificated Notes
or Beneficial Interests in an Unrestricted Global Note
(a) / / Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global
Note. In connection with the Exchange of the Owner's beneficial interest
in a Restricted Global Note for a beneficial interest in an Unrestricted
Global Note 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 Notes 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 Note 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 Note to Unrestricted Certificated Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for an Unrestricted Certificated Note, the Owner hereby
certifies (i) the Certificated Note 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 Notes 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 Note 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 Note
to beneficial interest in an Unrestricted Global Note. In connection with
the Owner's Exchange of a Restricted Certificated Note for a beneficial
interest in an Unrestricted Global Note, 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 Notes 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 Note
to Unrestricted Certificated Note. In connection with the Owner's
Exchange of a Restricted Certificated Note for an Unrestricted
Certificated Note, the Owner hereby certifies (i) the Unrestricted
Certificated Note 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 Notes 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 Note is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
2. Exchange of Restricted Certificated Notes or Beneficial Interests in
Restricted Global Notes for Restricted Certificated Notes or Beneficial
Interests in Restricted Global Notes
(a) / / Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Certificated Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a Restricted Certificated Note with an equal principal
amount, the Owner hereby certifies that the Restricted Certificated Note
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 Note issued will continue to be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Certificated Note and in the
Indenture and the Securities Act.
(b) / / Check if Exchange is from Restricted Certificated Note to
beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner's Restricted Certificated Note for a beneficial
interest in the [CHECK ONE] " 144A Global Note, " Regulation S Global
Note, 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 Notes 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 Note and in the Indenture and
the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
___________________________________
[Insert Name of Owner]
By: _______________________________
Name:
Title:
Dated: ________________, ____
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Oshkosh Truck Corporation
P. O. Box 2566
Oshkosh, WI 54903
[Registrar address block]
Re: 8 3/4% Senior Subordinated Notes Due 2008
Reference is hereby made to the Indenture, dated as of [insert
date] (the "Indenture"), between Oshkosh Truck Corporation, as issuer (the
"Company"), the Subsidiary Guarantors (as defined therein), and Firstar
Trust Company, 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 Note, or
(b) / / a Certificated Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes 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 Notes 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 Notes have not
been registered under the Securities Act, and that the Notes 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 Notes or any interest therein, we will do so only (A) to the
Company 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 the Company a signed letter
substantially in the form of this letter and , if such transfer is in
respect of a principal amount of Notes, at the time of transfer of less
than $250,000, an Opinion of Counsel in form reasonably acceptable to the
Company 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 Note or beneficial
interest in a Global Note 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 Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you
and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the
Notes purchased by us will bear a legend to the foregoing effect. We
further understand that any subsequent transfer by us of the Notes 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 Notes, 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 Notes 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 the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
__________________________________________
[Insert Name of Accredited Investor]
By: _______________________________
Name:
Title:
Dated: __________________, ____
EXHIBIT E
FORM OF NOTATION OF SUBSIDIARY GUARANTEE
For value received, each Subsidiary Guarantor (which term includes
any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture dated as of February 26, 1998
(the "Indenture") among Oshkosh Truck Corporation, the Subsidiary
Guarantors listed on Schedule I thereto and Firstar Trust Company, as
trustee (the "Trustee"), (a) the due and punctual payment of the principal
of, premium, if any, and interest on the Notes (as defined in the
Indenture), whether at maturity, by acceleration, redemption or otherwise,
the due and punctual payment of interest on overdue principal and premium,
and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. The obligations
of the Subsidiary Guarantors to the Holders of Notes and to the Trustee
pursuant to the Subsidiary Guarantee and the Indenture are expressly set
forth in Article 10 of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Subsidiary Guarantee. Each Holder
of a Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such
Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints
the Trustee attorney-in-fact of such Holder for such purpose; provided,
however, that the Indebtedness evidenced by this Subsidiary Guarantee
shall cease to be so subordinated and subject in right of payment upon any
defeasance of this Note in accordance with the provisions of the
Indenture.
[Name of Subsidiary Guarantor(s)]
By: ________________________________
Name:
Title:
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of ________________, among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of Oshkosh Truck Corporation (or its permitted
successor), a Wisconsin corporation (the "Company"), the Company, the
other Subsidiary Guarantors (as defined in the Indenture referred to
herein) and Firstar Trust Company, as trustee under the indenture referred
to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of February 26, 1998
providing for the issuance of an aggregate principal amount of up to
$150,000,000 of 8 3/4% Senior Subordinated Notes due 2008 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances
the Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiary shall
unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the
"Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby
acknowledged, the Guaranteeing Subsidiary and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Subsidiary Guarantors named in the
Indenture, to jointly and severally Guarantee to each
Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof;
and
(ii) in case of any extension of time of payment or renewal
of any Notes or any of such other obligations, that
same will be promptly paid in full when due or
performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due
of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Subsidiary
Guarantors shall be jointly and severally obligated to
pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability
of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of
the Notes with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge
or defense of a Subsidiary Guarantor.
(c) The following is hereby waived: diligence presentment,
demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company, protest,
notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by
complete performance of the obligations contained in the
Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Subsidiary
Guarantors, or any Custodian, Trustee, liquidator or other
similar official acting in relation to either the Company
or the Subsidiary Guarantors, any amount paid by either to
the Trustee or such Holder, this Subsidiary Guarantee, to
the extent theretofore discharged, shall be reinstated in
full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect
of any obligations guaranteed hereby until payment in full
of all obligations guaranteed hereby.
(g) As between the Subsidiary Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for
the purposes of this Subsidiary Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed
hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6
of the Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the
Subsidiary Guarantors for the purpose of this Subsidiary
Guarantee.
(h) The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so
long as the exercise of such right does not impair the
rights of the Holders under the Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving
effect to any maximum amount and any other contingent and
fixed liabilities that are relevant under any applicable
Bankruptcy or fraudulent conveyance laws, and after giving
effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under Article 10 of the
Indenture shall result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
3 EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees
that the Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain
Terms.
(a) The Guaranteeing Subsidiary may not consolidate with or merge
with or into (whether or not such Subsidiary Guarantor is the
surviving Person) another corporation, Person or entity
whether or not affiliated with such Subsidiary Guarantor unless:
(i) subject to Section 10.05 of the Indenture, the Person
formed by or surviving any such consolidation or merger (if
other than a Subsidiary Guarantor or the Company)
unconditionally assumes all the obligations of such
Subsidiary Guarantor, pursuant to a supplemental indenture
in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Subsidiary
Guarantee on the terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Subsidiary
Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the
Indenture to be performed by the Subsidiary Guarantor, such
successor corporation shall succeed to and be substituted for
the Subsidiary Guarantor with the same effect as if it had
been named herein as a Subsidiary Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the
Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the
Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under the Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the
execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained
in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor, or shall prevent
any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety to
the Company or another Subsidiary Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the
assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of
all to the capital stock of any Subsidiary Guarantor, then
such Subsidiary Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of such Subsidiary Guarantor) or the
corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of
such Subsidiary Guarantor) will be released and relieved of
any obligations under its Subsidiary Guarantee; provided that
the Net Proceeds of such sale or other disposition are applied
in accordance with the applicable provisions of the Indenture,
including without limitation Section 4.10 of the Indenture.
Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including
without limitation Section 4.10 of the Indenture, the Trustee
shall execute any documents reasonably required in order to
evidence the release of any Subsidiary Guarantor from its
obligations under its Subsidiary Guarantee.
(b) Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the
full amount of principal of and interest on the Notes and for
the other obligations of any Subsidiary Guarantor under the
Indenture as provided in Article 10 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or
for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder of the Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view
of the Commission that such a waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
8. COUNTERPARTS The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10 THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the
date first above written.
Dated: _______________, ____
[Guaranteeing Subsidiary]
By: _________________________________
Name:
Title:
OSHKOSH TRUCK CORPORATION
By: _________________________________
Name:
Title:
[EXISTING SUBSIDIARY GUARANTORS]
By: ______________________________
Name:
Title
FIRSTAR TRUST COMPANY, as Trustee
By: ______________________________
Name:
Title:
Schedule I
SCHEDULE OF SUBSIDIARY GUARANTORS
The following schedule lists each Subsidiary Guarantor under the
Indenture as of the Issue Date:
McNeilus Truck & Manufacturing, Inc.
Iowa Contract Fabricators, Inc.
XxXxxxxx Fabricators, Inc.
Kensett Fabricators, Inc.
McNeilus Companies, Inc.
McNeilus Financial, Inc.
Xxxxxx Manufacturing, Inc.
Summit Performance Systems, Inc.
