<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 1999
REGISTRATION NO. 333-69693
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
GROUP 1 AUTOMOTIVE, INC.
(Name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 76-0506313
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
SEE "TABLE OF ADDITIONAL REGISTRANTS" ON THE FOLLOWING PAGE FOR INFORMATION
RELATING TO THE SUBSIDIARIES OF GROUP 1 AUTOMOTIVE, INC. THAT MAY GUARANTEE
PAYMENTS OWED ON THE DEBT SECURITIES REGISTERED HEREUNDER.
<TABLE>
<S> <C>
950 ECHO LANE, SUITE 350 B.B. HOLLINGSWORTH, JR.
HOUSTON, TEXAS 77024 CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
(713) 467-6268 (713) 467-6268
(Address, including zip code, and telephone number, (Name, address, including zip code, and telephone
including area code, of Registrant's principal number, including area code, of agent for service)
executive offices)
</TABLE>
Copy to:
JOHN S. WATSON
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
HOUSTON, TEXAS 77002-6760
(713) 758-2222
(713) 758-2346 (FAX)
---------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF ADDITIONAL REGISTRANTS
UNDER REGISTRATION STATEMENT ON FORM S-3
The following subsidiaries of Group 1 Automotive, Inc. are co-registrants
under this Registration Statement for the purpose of providing guarantees, if
any, of payments on debt securities registered hereunder:
<TABLE>
<CAPTION>
SUBSIDIARY STATE OF ORGANIZATION IRS EMPLOYER ID NO.
---------- --------------------- -------------------
<S> <C> <C>
Southwest Toyota, Inc. Texas 76-0173063
SMC Luxury Cars, Inc. Texas 76-0270456
McCall Automotive Group, Inc. Delaware Applied For
Courtesy Nissan, Inc. Texas 75-1905979
Group 1 Ford, Inc. Texas 74-2861544
McKinney Dodge, Inc. Texas 75-2763925
Smith Automotive Group, Inc. Texas 76-0568340
Mike Smith Automotive-H, Inc. Texas Applied For
Mike Smith Automotive-N, Inc. Texas 76-0566784
Mike Smith Autoplaza, Inc. Texas 76-0202396
Mike Smith Autoplex, Inc. Texas 76-0561393
Mike Smith Autoplex Buick, Inc. Texas 76-0566787
Mike Smith Autoplex Dodge, Inc. Texas 76-0566783
Mike Smith Autoplex-German Imports, Inc. Texas 76-0566786
Mike Smith Autoplex-V, Inc. Texas 76-0566788
Mike Smith L/M, Inc. Delaware Applied For
Mike Smith GM, Inc. Delaware Applied For
Round Rock Nissan, Inc. Texas 76-0513858
Smith, Liu & Corbin, Inc. Texas 76-0173063
Smith, Liu & Kutz, Inc. Texas 76-0140051
Town North Imports, Inc. Texas 74-2551405
Town North Nissan, Inc. Texas 74-2360462
Town North Suzuki, Inc. Texas 74-2443143
Bob Howard Automotive-A, Inc. Oklahoma Applied For
Bob Howard Automotive-H, Inc. Oklahoma 73-1443717
Bob Howard Chevrolet, Inc. Oklahoma 73-1329605
Bob Howard Dodge, Inc. Oklahoma 73-1494123
Bob Howard Motors, Inc. Oklahoma 73-1370828
Bob Howard Nissan, Inc. Oklahoma 73-1524179
Howard Automotive Group, Inc. Oklahoma 73-1540344
Howard Pontiac-GMC, Inc. Oklahoma 73-1022200
Foyt Motors, Inc. Texas 76-0237540
Kingwood Motors-H, Inc. Texas Applied For
Koons Ford, Inc. Florida 59-1914202
Courtesy Ford, Inc. Florida 76-0558145
Perimeter Ford, Inc. Delaware 76-0558147
Flamingo Ford, Inc. Florida 59-3501408
J. Carroll Management Group, Inc. Florida 65-0817420
Prestige Chrysler Plymouth Northwest, Ltd. Texas (limited partnership) 74-2679593
MMK Interests, Inc. Texas 74-2679591
Prestige Chrysler Plymouth South, Ltd. Texas (limited partnership) 74-2690980
Prestige Chrysler Plymouth, Inc. Texas 74-2571848
Maxwell Chrysler Plymouth Dodge Jeep Eagle,
Ltd. Texas (limited partnership) 74-2690982
Maxwell Chrysler Plymouth Dodge, Inc. Texas 74-2398548
Highland Autoplex, Inc. Texas 74-2873513
Prestige Maxwell, Inc. Delaware 51-0379880
Maxwell Ford, Ltd. Texas (limited partnership) 74-2884783
Maxwell Holdings, Inc. Delaware 51-0382407
Maxwell Texas Management, Inc. Texas 74-2884780
Casa Chevrolet Inc. New Mexico 85-0450426
Casa Chrysler Plymouth Jeep Inc. New Mexico 85-0450428
Johns Automotive Group, Inc. New Mexico Applied For
Luby Chevrolet Co. Delaware 84-0459450
</TABLE>
<PAGE> 3
TABLE OF ADDITIONAL REGISTRANTS
UNDER REGISTRATION STATEMENT ON FORM S-3
<TABLE>
<CAPTION>
SUBSIDIARY STATE OF ORGANIZATION IRS EMPLOYER ID NO.
---------- --------------------- -------------------
<S> <C> <C>
Lubbock Motors-F, Ltd. Texas (limited partnership) Applied For
Lubbock Motors-T, Ltd. Texas (limited partnership) Applied For
Lubbock Automotive-M, Inc. Delaware Applied For
Rockwall Automotive-F, Ltd. Texas (limited partnership) Applied For
Amarillo Motors-C, Ltd. Texas (limited partnership) Applied For
Amarillo Motors-J, Ltd. Texas (limited partnership) Applied For
Amarillo Motors-F, Ltd. Texas (limited partnership) Applied For
Lubbock Motors, Inc. Texas Applied For
Kutz Auto Group, Inc. Texas Applied For
Chapparal Dodge, Ltd. Texas (limited partnership) Applied For
Colonial Chrysler-Plymouth, Ltd. Texas (limited partnership) Applied For
Group 1 Holdings-T, Inc. Delaware Applied For
Group 1 Holdings-GM, Inc. Delaware Applied For
Delaware Acquisition-CC, L.L.C. Delaware Applied For
Delaware Acquisition-GM, L.L.C. Delaware Applied For
Delaware Acquisition-T, L.L.C. Delaware Applied For
Delaware Acquisition-F, L.L.C. Delaware Applied For
Bob Howard Automotive-East, Inc. Oklahoma 73-1511394
GPI Atlanta, Inc. Delaware 58-2436391
Mike Smith Autoplex-A, Inc. Texas 76-0587242
Mike Smith Motors, Inc. Texas 76-0586392
Mike Smith Imports, Inc. Texas 76-0586800
Sunshine Buick Pontiac GMC Truck, Inc. New Mexico 85-0457224
Group 1 Realty, Inc. Delaware Applied For
</TABLE>
<PAGE> 4
PROSPECTUS
Group 1 Automotive, Inc.
950 Echo Lane, Suite 350
Houston, Texas 77024
(713) 467-6268
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
---------------------
We may offer and sell the securities listed above with an aggregate offering
price up to $250 million in connection with this prospectus. We will provide
specific terms of these offerings and securities in supplements to this
prospectus, including whether the debt securities are guaranteed by all of our
subsidiaries.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT TO THIS PROSPECTUS
CAREFULLY BEFORE YOU INVEST, INCLUDING THE RISK FACTORS WHICH BEGIN ON PAGE 4 OF
THIS PROSPECTUS.
---------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
This prospectus may not be used to consummate sales of securities unless
accompanied by a prospectus supplement.
This prospectus is dated January 29, 1999.
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
Cautionary Statement About Forward-Looking Statements....... 3
Disclaimer.................................................. 4
The Company................................................. 4
Risk Factors................................................ 4
Use of Proceeds............................................. 12
Ratios of Earnings to Fixed Charges and Earnings to Fixed
Charges plus Dividends.................................... 12
Description of Debt Securities.............................. 12
Description of Capital Stock................................ 21
Depositary Shares........................................... 26
Plan of Distribution........................................ 27
Legal Matters............................................... 28
Experts..................................................... 28
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") utilizing a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $250 million. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities we will
provide a prospectus supplement that will contain specific information about the
terms of the offering and the securities. The prospectus supplement may also
add, update or change information contained in this prospectus. Any statement
that we make in this prospectus will be modified or superseded by any
inconsistent statement made by us in a prospectus supplement. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the regional offices of the SEC located at
7 World Trade Center, Suite 1300, New York, New York 10048 and at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. You may obtain information
on the operation of the SEC's public reference room in Washington, D.C. by
calling the SEC at 1-800-SEC-0330. We also file such information with the New
York Stock Exchange. Such reports, proxy statements and other information may be
read and copied at 30 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any further filings made with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") until we sell all of the securities or we terminate
this offering:
- Our Annual Report on Form 10-K for the year ended December 31, 1997 (as
amended on April 15, 1998);
2
<PAGE> 6
- Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 (as amended on September 22, 1998) and September 30, 1998;
- Our Current Reports on Form 8-K, filed March 31, 1998 (as amended on May
28, 1998), April 15, 1998, (as amended on June 11, 1998), December 11,
1998, January 25, 1999 and January 26, 1999; and
- The description of the common stock contained in our Form 8-A dated
October 7, 1997.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Scott L. Thompson
Senior Vice President -- Chief Financial Officer & Treasurer
Group 1 Automotive, Inc.
950 Echo Lane, Suite 350
Houston, Texas 77024
(713) 467-6268
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
CAUTIONARY STATEMENT ABOUT FORWARD-LOOKING STATEMENTS
This prospectus contains statements that constitute "forward-looking
statements" within the meaning of Section 27A of the Securities Act (the
"Securities Act") and Section 21E of the Securities Exchange Act (the "Exchange
Act"). These statements appear in a number of places in this prospectus and
include statements regarding our plans, beliefs or current expectations,
including those plans, beliefs and expectations of our officers and directors
with respect to, among other things:
- future acquisitions,
- expected future cost savings,
- future capital expenditures,
- trends affecting our future financial condition or results of operations,
and
- our business strategy regarding future operations.
Any such forward-looking statements are not assurances of future
performance and involve risks and uncertainties. Actual results may differ
materially from anticipated results for a number of reasons, including:
- industry conditions,
- future demand for new and used vehicles,
- restrictions imposed on us by automobile manufacturers,
- the ability to obtain the consents of automobile manufacturers to our
acquisitions,
- the availability of capital resources, and
- the willingness of acquisition candidates to accept our common stock as
currency.
The information contained in this prospectus, including the information set
forth under the heading "Risk Factors," identifies additional factors that could
affect our operating results and performance. We urge you to carefully consider
those factors.
All forward-looking statements attributable to us are expressly qualified
in their entirety by this cautionary statement.
3
<PAGE> 7
DISCLAIMER
No Manufacturer or Distributor (as defined in this prospectus) has been
involved, directly or indirectly, in the preparation of this prospectus or in
any offering made hereby. No Manufacturer or Distributor has made any statements
or representations in connection with the offering or has provided any
information or materials that were used in connection with the offering, and no
Manufacturer or Distributor has any responsibility for the accuracy or
completeness of this prospectus.
THE COMPANY
We are a leading operator and consolidator in the highly fragmented
automotive retailing industry. We currently own 59 automobile dealership
franchises representing 23 different brands of automobiles and 12 collision
service centers located in Texas, Oklahoma, Florida, New Mexico, Georgia and
Colorado. Through our dealerships, we sell new and used cars and light trucks,
provide maintenance and repair services, sell replacement parts and arrange
related financing, vehicle service contracts and insurance.
We were incorporated in Delaware in December 1995. We began operating
automobile dealerships in November 1997 when we acquired our four "founding
groups" in four separate simultaneous transactions. Our founding groups owned 30
dealership franchises, and, since then, we have acquired an additional 33
dealership franchises in 10 separate acquisitions. Additionally, we acquired two
franchises through manufacturer grants. During 1998, we sold one Subaru
franchise and returned one Kia franchise to the manufacturer. In addition,
Chrysler ceased operation of the Eagle brand nationally, of which we had four
franchises. These six franchises were insignificant to our operations.
Our corporate headquarters is located in Houston, Texas at 950 Echo Lane,
Suite 350, Houston, Texas 77024 (telephone: (713) 467-6268).
RISK FACTORS
You should carefully consider and evaluate all of the information in this
prospectus, including the risk factors set forth below, before investing.
MANUFACTURER RESTRICTIONS
The following table sets forth the percentage of our new vehicle retail
unit sales attributable to the manufacturers we represent:
<TABLE>
<CAPTION>
PERCENTAGE OF OUR
NEW VEHICLE
PRO FORMA RETAIL
UNITS FOR THE NINE
MONTHS ENDED
MANUFACTURER SEPTEMBER 30, 1998
------------ ------------------
<S> <C>
Ford........................................................ 25.7%
Toyota/Lexus................................................ 19.3
Chrysler.................................................... 18.1
General Motors.............................................. 14.8
Nissan...................................................... 9.4
Honda/Acura................................................. 9.2
Other....................................................... 3.5
-----
Total....................................................... 100.0%
=====
</TABLE>
The loss of our relationships with one or more of these named manufacturers
could have an adverse effect on our business.
The term Manufacturers refers to all of the manufacturers of new cars that
we sell, including Ford Motor Company ("Ford"), General Motors Corporation
("GM"), DaimlerChrysler ("Chrysler"), Toyota Motor Corp. and Toyota Motor Sales,
U.S.A., Inc. (collectively "Toyota"), Honda Motor Co., Ltd. and American Honda
Motor Co., Inc. (collectively "Honda"), Nissan Motor Co., Ltd. and Nissan Motor
4
<PAGE> 8
North America, Inc. (collectively "Nissan"), Mitsubishi Motor Sales of America,
Inc., American Isuzu Motors, Inc., American Suzuki Motor Corporation and Volvo
Cars of North America, Inc.
FRANCHISE AGREEMENTS. Each of our dealerships operates under a franchise
agreement with one of our Manufacturers (or authorized distributors
("Distributors")). Under our dealership franchise agreements, the Manufacturers
exert considerable influence over the operations of our dealerships. Each of the
franchise agreements may be terminated or not renewed by the Manufacturer for a
variety of reasons, including any unapproved change of ownership or management.
While we believe that we will be able to renew all of our franchise agreements,
we cannot guarantee that all of our franchise agreements will be renewed or that
the terms of the renewals will be favorable to us.
Our franchise agreements do not give us the exclusive right to sell a
Manufacturer's product within a given geographic area. Accordingly, a
Manufacturer may, subject to any protection of state law, grant another dealer a
franchise to start a new dealership near one of our locations, or an existing
dealer may move its dealership to a location which would compete directly with
us. The location of new dealerships near our existing dealerships could
adversely affect our operations.
ACQUISITIONS. We must obtain the consent of the Manufacturer prior to the
acquisition of any of its dealership franchises. Delays in obtaining, or failing
to obtain, Manufacturer approvals for dealership acquisitions could adversely
affect our growth strategy. Obtaining the consent of a Manufacturer for the
acquisition of a dealership could take a significant amount of time or might be
rejected entirely. Obtaining the approvals of the Manufacturers for the
acquisition of our founding groups took almost one year. Although the
Manufacturer approvals of our recent acquisitions have taken significantly less
time, future approvals may not be prompt and such approvals may not be
ultimately obtained.
In determining whether to approve an acquisition, Manufacturers may
consider many factors, including the moral character and business experience of
the dealership principals and the financial condition, ownership structure and
customer satisfaction index scores of our dealerships.
Our Manufacturers attempt to measure customers' satisfaction with
automobile dealerships through systems generally known as the customer
satisfaction index or "CSI". The Manufacturers have modified the components of
their CSI scores from time to time in the past, and they may replace them with
different systems. Failure of our dealerships to comply with a Manufacturer's
CSI standards could adversely affect our ability to acquire additional
dealerships.
In addition, a Manufacturer may limit the total number of its dealerships
that we may own or the number that we may own in a particular geographic area.
The following is a summary of the restrictions imposed by our most significant
Manufacturers.
Ford. Ford currently limits the number of dealerships that we may own to
the greater of (1) 15 Ford and 15 Lincoln Mercury dealerships and (2) that
number of Ford and Lincoln Mercury dealerships accounting for 5% of the
preceding year's total Ford and Lincoln Mercury retail sales of those brands in
the United States. In addition, Ford limits us to one Ford dealership in a
Ford-defined market area having two or less authorized Ford dealerships and
one-third of the Ford dealerships in any Ford-defined market area having more
than three authorized Ford dealerships. In many of its dealership franchise
agreements, Ford has the right of first refusal to acquire, subject to
applicable state law, the Ford franchised dealership when its ownership changes.
Toyota. Toyota restricts the number of dealerships that we may own and the
time frame over which they may be acquired. We can acquire no more than two
Toyota dealerships in each semi-annual period from January to June and July to
December until we acquire a total of seven Toyota dealerships. After we acquire
seven Toyota dealerships we can acquire, if we are then qualified, additional
dealerships over a minimum of seven semi-annual periods up to a maximum number
of dealerships equal to 5% of Toyota's aggregate national annual retail sales
volume. In addition, Toyota restricts the number of Toyota dealerships that we
may acquire in any Toyota-defined region and "Metro" market, as well as any
contiguous market. We may acquire only three Lexus dealerships nationally and
two Lexus dealerships in any one of the four Lexus geographic areas. While we
recently have been granted a Lexus companion
5
<PAGE> 9
dealership located south of Houston, this dealership is not considered by Lexus
to be a new and separate Lexus dealership for purposes of the restriction on the
number of Lexus dealerships we may acquire.
Chrysler. Currently, we have no agreement with Chrysler restricting our
ability to acquire Chrysler dealerships. Chrysler has advised us that in
determining whether to approve an acquisition of a Chrysler dealership, Chrysler
considers the number of Chrysler dealerships the acquiring company already owns.
Chrysler currently considers carefully, on a case-by-case basis, any acquisition
that would cause the acquiring company to own more than 10 Chrysler dealerships
nationally, six in the same Chrysler-defined zone and two in the same market.
General Motors. General Motors currently limits the number of GM
dealerships that we may acquire prior to October 1999 to seven additional GM
dealership locations (any one dealership, however, may include a number of
different GM franchises, such as a combination of GMC, Pontiac and Buick
franchises). In addition, GM limits the maximum number of GM dealerships that we
may acquire at any time to 50% of the GM dealerships, by franchise line, in a
GM-defined geographic market area. However, our current agreement with GM does
not include Saturn dealerships and our future acquisition of a Saturn dealership
will be subject to GM approval on a case-by-case basis.
Nissan. Nissan restricts us from owning Nissan dealerships whose primary
marketing areas ("PMA", as defined by Nissan) competitive segment registration
count comprises more than 5% of Nissan's total national competitive segment
registrations based on the sum of the retail competitive segment registrations
in PMAs associated with us; or 20% of any Nissan region's total competitive
segment registrations contained in all PMAs associated with us in that region.
Honda. Under our current agreement with Honda, Honda limits the number of
dealerships that we may own to (1) seven Honda and three Acura franchises
nationally, (2) one Honda dealership in a Honda-defined "Metro" market with two
to 10 Honda dealership points, (3) two Honda dealerships in a Metro market with
11 to 20 Honda dealership points, (4) three Honda dealerships in a Metro market
with 21 or more Honda dealership points, (5) no more than 4% of the Honda
dealerships in any one of the 10 Honda geographic zones, (6) one Acura
dealership in a Metro market, and (7) two Acura dealerships in any one of the
six Acura geographic zones.
Honda has proposed a new agreement to replace our current agreement. Honda
has proposed that we could acquire Honda dealerships representing up to 6% of
total Honda unit sales in the United States by December 31, 2005, increasing 1%
each year beginning January 1, 2002 from the 2% level in effect through December
31, 2001. The proposed new agreement contains additional restrictions in various
geographic markets. We are continuing to negotiate with Honda on these
geographic restrictions as well as other restrictions on the number of
dealerships that we may acquire. Also under the proposed new agreement, we could
acquire no more than two Acura dealerships in a Metro market with four or more
dealer points and one Acura dealership in other Metro markets, three Acura
dealerships in any one of the six Acura geographic zones and five Acura
dealerships nationally.
We currently own six Ford, one Lincoln, one Mercury, 21 Chrysler, two
Toyota, one Lexus, three Honda and two Acura dealership franchises and six
General Motors dealership locations. Under current restrictions, we may acquire
the maximum number of Toyota dealerships described above based on aggregate
national retail sales volume of Toyota, two additional Lexus dealerships, four
additional Honda dealerships, one additional Acura dealership, approximately 400
additional Ford and Lincoln Mercury dealerships and seven additional GM
dealership locations prior to October 1999, subject to being increased.
FINANCINGS. Provisions in our agreements with our Manufacturers may
restrict in the future our ability to obtain financing. Our current agreement
with Honda requires Honda's consent for any equity offering. Honda's proposed
new agreement with us does not contain that requirement. We have not negotiated
or executed the proposed new agreement, nor have we obtained Honda's consent for
any offering in connection with this prospectus. If Honda were to claim that we
breached its existing agreement with us and seek to enforce its remedies, we
could be adversely affected.
6
<PAGE> 10
If we materially breach our agreement with Honda, Honda could purchase our
Honda and Acura dealerships at their fair market value and terminate our dealer
agreements with Honda and Acura. For the nine-month period ended September 30,
1998, our Honda and Acura dealerships represented approximately 8.9% and 8.4% of
our pro forma revenues and operating income, respectively.
Honda's proposed new agreement prohibits pledging the stock of Honda
franchised dealerships to secure debt financing, although it allows pledging the
proceeds from the sale of Honda franchised dealership stock. We are continuing
to negotiate with Honda on the terms of the proposed new agreement.
Our agreement with General Motors contains provisions prohibiting pledging
the stock of our GM franchised dealerships. Our agreement with Ford permits
pledging our Ford franchised dealerships' stock and assets, but only for Ford
dealership-related debt. Moreover, our Ford agreement permits our Ford
franchised dealerships to guarantee, and to use Ford franchised dealership
assets to secure, our debt, but only for Ford dealership-related debt. Ford has
waived that requirement for the offering of Debt Securities covered by this
prospectus. If, however, we fail to meet certain minimum financial ratios Ford
can reject any acquisitions of Ford franchised dealerships and/or purchase our
Ford franchised dealerships.
OUR OWNERSHIP AND MANAGEMENT. As a condition to granting their consent to
our previous acquisitions and our initial public offering, some Manufacturers
have imposed other restrictions on us.
These restrictions prohibit:
- any one person who in the opinion of the Manufacturer is unqualified to
own its franchised dealership or has interests incompatible with the
Manufacturer from acquiring more than a specified percentage of our
common stock (5% in the case of Honda; 20% in the case of General Motors,
Toyota and Nissan, and 50% in the case of Ford;
- certain material changes in us or extraordinary corporate transactions
such as a merger or sale of a material amount of our assets;
- the removal of a dealership general manager without the consent of the
Manufacturer;
- the use of dealership facilities to sell or service new vehicles of other
Manufacturers in certain situations; and
- changes in control of our Board of Directors or management.
If we are unable to comply with these restrictions, we generally must (1)
sell the assets of the dealerships to the Manufacturer or to a third party
acceptable to the Manufacturer or (2) terminate the dealership agreements with
the Manufacturer. The Manufacturers may impose additional restrictions on us in
the future. Our failure to meet these restrictions may adversely affect, our
business and acquisition strategy.
Our current agreement with Honda gives Honda the right to approve the
acquisition of more than 5% of our common stock by any individual or entity, and
any subsequent acquisition of more than 10% by such individual, if Honda
determines that such acquisition is reasonably detrimental to its interests.
Honda may determine that such acquisition is reasonably detrimental to its
interests if the acquiring person: competes with Honda, has criminal
affiliations or a criminal record, has inadequate experience in the automotive
sales and service business, has an unacceptable credit rating, has unacceptable
CSI scores or has had prior unsatisfactory relationships with Honda.
An institutional investor may acquire up to 10% of our common stock without
the consent of Honda, unless the institutional investor competes with Honda, has
criminal affiliations or a criminal record, or has acquired, or has a reasonable
likelihood of acquiring, a controlling interest in us.
We are required to notify Honda with respect to any such acquisition or
proposed acquisition, and if Honda does not approve of the acquisition, we are
required to use our best efforts to prevent the acquisition or, if the
acquisition has already occurred, to reacquire the shares so transferred. If we
are unable to prevent the acquisition or to reacquire the shares we will be in
material breach of our agreement with Honda.
7
<PAGE> 11
In addition, under our agreement with Honda, each stockholder of the
founding groups has agreed not to sell, transfer or in any manner encumber any
of the shares of our common stock he acquired in connection with our acquisition
of the founding groups, or enter into any agreement or other arrangement
providing for the voting of such shares of common stock, without the prior
written approval of Honda. If one of these stockholders violates this
restriction, we must inform Honda. If Honda does not approve the transfer, and
we cannot acquire the shares or arrange for the retransfer of such shares to a
person approved by Honda, we will be in breach of our agreement with Honda. The
new agreement proposed by Honda does not contain these restrictions on our
stockholders.
Our agreement with Honda also provides that if an entity that Honda has not
approved acquires or threatens to acquire a controlling interest in us or any of
our Honda or Acura dealerships, we will be in breach of our agreement with
Honda.
OPERATIONS. We depend on our Manufacturers for operational support:
- We depend on the Manufacturers to provide us with a desirable mix of new
vehicles. The most popular vehicles usually produce the highest profit
margins and are frequently difficult to obtain from the Manufacturers. If
we cannot obtain sufficient quantities of the most popular models, our
profitability may be adversely affected. Sales of less desirable models
may reduce our profit margins.
- We depend on the Manufacturers for sales incentives and other programs
that are intended to promote dealership sales or support dealership
profitability. Manufacturers historically have made many changes to their
incentive programs during each year. A discontinuation or change in
Manufacturers' incentive programs could adversely affect our business.
Moreover, some Manufacturers use a dealership's CSI scores as a factor
for participating in incentive programs. Failure to comply with the CSI
standards could adversely affect our participation in dealership
incentive programs, which could have a material adverse effect on us.
Our Manufacturer agreements also specify that we cannot operate a
dealership franchised by another Manufacturer in the same building as that
Manufacturer's franchised dealership in certain situations. In addition, some
Manufacturers, like GM, are in the process of realigning their franchised
dealerships along defined "channels", such as combining Pontiac, Buick and GMC
in one dealership location. As a result, GM may require us to move or sell some
dealerships. Moreover, our Manufacturers generally require that the dealership
premises meet defined image standards. All of these requirements could impose
significant capital expenditures on us in the future.
DEPENDENCE ON ACQUISITIONS FOR GROWTH
Growth in our revenues and earnings depends substantially on our ability to
acquire and successfully operate dealerships. We cannot guarantee that we will
be able to identify and acquire dealerships in the future. In addition, managing
and integrating additional dealerships into our existing mix of dealerships may
result in substantial costs, delays or other operational or financial problems.
Restrictions by our Manufacturers as well as covenants contained in our
debt instruments limit our ability to acquire additional dealerships. In
addition, increased competition for acquisition candidates may develop, which
could result in fewer acquisition opportunities available to us and higher
acquisition prices.
Acquisitions involve a number of additional risks, including:
- diversion of our resources and our management's attention,
- our possible inability to retain key personnel of the acquired
dealership, and
- unanticipated events or liabilities.
We will continue to need substantial capital in order to acquire additional
automobile dealerships. In the past, we have financed these acquisitions with a
combination of cash flow from operations, proceeds from borrowings under our
credit facilities with banks and issuances of our common stock. We cannot
8
<PAGE> 12
guarantee that these sources of funds will be sufficient to fund our acquisition
program and other cash needs, or that we will be able to obtain adequate
additional capital from other sources.
We expect to utilize our current credit facility to borrow a portion of the
funds required for acquisitions. If funds under the credit facility are
insufficient to fund our acquisition program, we will be required to obtain
alternative financing such as from the issuance of additional debt or equity
securities or an expansion or replacement of the credit facility.
We currently intend to finance future acquisitions by issuing shares of
common stock as full or partial consideration for acquired dealerships. The
extent to which we will be able or willing to issue common stock for
acquisitions will depend on the market value of the common stock from time to
time and the willingness of potential acquisition candidates to accept common
stock as part of the consideration for the sale of their businesses. If
potential acquisition candidates are unwilling to accept our common stock, we
will be forced to rely solely on available cash or debt or equity financing,
which could adversely affect our acquisition program. Accordingly, our ability
to make acquisitions could be adversely affected if the price of our common
stock declines.
DEPENDENCE ON THE SUCCESS OF OUR MANUFACTURERS
Our success depends upon the overall success of the line of vehicles that
each of our dealerships sells. Demand for our Manufacturers' vehicles as well as
the financial condition, management, marketing, production and distribution
capabilities of our Manufacturers affect our business.
Although we have attempted to lessen our dependence on any one Manufacturer
by buying dealerships representing a number of different domestic and foreign
Manufacturers, events such as labor disputes and other production disruptions
that may adversely affect a Manufacturer may also adversely affect us.
Similarly, the late delivery of vehicles from Manufacturers, which sometimes
occurs during periods of new product introductions, can lead to reduced sales
during those periods. Moreover, any event that causes adverse publicity
involving any of our Manufacturers may have an adverse effect on us regardless
of whether such event involves any of our dealerships.
RISKS OF IMPORTING PRODUCTS
A significant portion of our new vehicle business involves the sale of
vehicles, vehicle parts or vehicles composed of parts that are manufactured
outside the United States. As a result, our operations are subject to customary
risks associated with imported merchandise, including fluctuations in the value
of currencies, import duties, exchange controls, trade restrictions, work
stoppages and general political and economic conditions in foreign countries.
The United States or the countries from which our products are imported
may, from time to time, impose new quotas, duties, tariffs or other
restrictions, or adjust presently prevailing quotas, duties or tariffs on
imported merchandise. Any of those impositions or adjustments could affect our
operations and our ability to purchase imported vehicles and parts. This, in
turn, could have an adverse effect on our business.
FLUCTUATIONS IN PROFITABILITY
The automobile industry is cyclical and historically has experienced
downturns characterized by oversupply and weak demand. Many factors affect the
industry, including general economic conditions, consumer confidence, personal
discretionary spending levels, interest rates and credit availability. We cannot
guarantee that the industry will not experience sustained periods of decline in
vehicle sales in the future. Any such decline could have an adverse effect on
our business.
The automobile industry also experiences seasonal variations in revenue.
Demand for automobiles is generally lower during the winter months than in other
seasons, particularly in regions of the United States associated with harsh
winters. Accordingly, we expect revenues and operating results generally to be
lower in our first and fourth quarters than in our second and third quarters.
9
<PAGE> 13
CONTINGENT ACQUISITION PAYMENTS
In our early acquisitions in which we issued shares of our common stock as
consideration, we guaranteed to the recipients of the shares that they will
receive a minimum price for their shares if they sell the shares in the market.
In the event that they do not receive the guaranteed price in a sale, we are
required to pay them the difference between the price they received and the
guaranteed price. As of December 31, 1998, there were 3,450,187 shares of common
stock subject to our guarantee with a weighted average guarantee price of
approximately $13.49 per share. These guarantees have terms of three years to
ten years with a weighted average term of approximately 6.3 years. If the price
of our common stock declines substantially and we are required to perform on our
guarantees, our liquidity and ability to finance our acquisition program could
be adversely affected.
In addition, in many of our acquisitions, we may be required to pay
contingent consideration to the former stockholders of the acquired dealerships
based on an increase in earnings before taxes of their operations during certain
periods of time. We cannot determine whether or how much we will have to pay
under these contingent payment arrangements. If we are required to make any of
these contingent payments, we will have to pay approximately one-half of each
payment in common stock and one-half in cash. If these contingent payments must
be paid in full, our liquidity and ability to finance our acquisition program
could be adversely affected.
LIMITED COMBINED OPERATING HISTORY
We were incorporated in December 1995 and commenced dealership operations
in November 1997 with the acquisition of the founding groups. The founding
groups had been owned, operated and managed as separate independent entities
prior to their acquisition by us. We have made a number of additional
acquisitions of automobile dealerships since we acquired the founding groups. We
intend to continue to acquire additional dealerships. Our future operating
results will depend in part on our ability to integrate the operations of those
businesses and manage the combined enterprise.
Our management group has been working together since December 1996. We
cannot guarantee that our management team will be able to effectively and
profitably integrate the founding groups and our other acquisitions or to
effectively manage the combined entity. Their inability to do so could adversely
affect our business.
SUBSTANTIAL COMPETITION
The automotive retailing industry is highly competitive with respect to
price, service, location and selection. We compete with automobile dealerships
(including other public franchised dealership consolidators), private market
buyers and sellers of used vehicles, used vehicle dealerships, service center
chains and independent service and repair shops. In the new vehicle area, we
compete with other franchised dealers.
We do not have any cost advantage in purchasing new vehicles from the
manufacturers and typically rely on advertising, merchandising, sales expertise,
service reputation and dealership location to sell new vehicles.
In recent years, our dealerships have also faced competition from
non-traditional sources such as companies that sell automobiles on the Internet,
automobile rental agencies, independent leasing companies, used-car
"superstores" and price clubs associated with established consumer agencies,
such as the American Automobile Association. Some of these competitors use
non-traditional sales techniques such as one-price shopping.
In addition, Ford has begun owning and operating automobile dealerships for
the purpose of consolidating Ford dealerships. For example, Ford has acquired
dealerships in Tulsa, Oklahoma and has entered into an agreement with Republic
Industries, Inc. to jointly acquire Ford dealerships in Rochester, New York.
Ford has also announced that it is exploring the possibility of going into
business with some of its dealers to create automotive superstores in selected
markets.
10
<PAGE> 14
Some of our competitors, including these recent market entrants, may have
greater financial, marketing and personnel resources than us and lower overhead
and sales costs.
In the parts and service area, we also compete with a number of regional or
national chains which offer selected parts and services at prices that may be
lower than our prices. We cannot guarantee that our strategy will be more
effective than the strategies of our competitors.
RELIANCE ON KEY PERSONNEL
We depend to a large extent upon the abilities and continued efforts of our
executive officers, senior management and principals of our dealerships.
Furthermore, we will likely be dependent on the senior management of any
dealerships acquired in the future. If any of those persons leave or if we fail
to attract and retain other qualified employees, our business could be adversely
affected.
Although we have entered into employment agreements with each of our
executive officers and some of the principals of our dealerships, we cannot
guarantee that any individual will continue in his present capacity with us for
any particular period of time. We currently have no key man insurance for any of
our officers or senior management.
YEAR 2000
Year 2000 issues result from the inability of computer programs or
computerized equipment to accurately calculate, store or use a date subsequent
to December 31, 1999. The erroneous date can be interpreted in a number of
different ways; typically the year 2000 is interpreted as the year 1900. This
could result in a system failure or miscalculations causing disruptions of
operations, including, among other things, a temporary inability to process
transactions, send invoices or engage in similar normal business activities.
We recognize the need to ensure that our computer systems, equipment and
operations will not be adversely impacted by the change to the calendar year
2000. In this regard, we have taken steps to identify potential areas of risk
and have begun addressing these in our planning, purchasing and daily
operations. We have not quantified the total cost of converting all internal
systems, equipment and operations for the year 2000, but we do not believe that
the cost will be material to our financial position. In connection with
acquisitions, we review and address the candidate's year 2000 readiness during
the due diligence process.
We are currently reviewing the potential adverse impact on us of the
failure of our third party service providers or vendors to address any of their
year 2000 issues. We are dependent upon our dealerships' computer systems in our
daily operations. All our dealerships are, or are expected to be, using a
computer system supported by a major automobile dealership computer system
provider. We have contacted each of these providers and have received assurance
from the providers that their systems are, or will be, year 2000 ready. We are
dependent upon these providers, as are most dealerships in the United States, to
address the year 2000 issues. In addition, we are dependent on our Manufacturers
for the production and delivery of new vehicles and parts. Although, we have no
reason to believe that our Manufacturers will not be year 2000 ready, we have
been unable to obtain written assurance from them that their systems are year
2000 ready.
Failure by us, our Manufacturers or our third party service providers and
vendors to adequately address the year 2000 issue could have an adverse effect
on us.
GOVERNMENTAL REGULATIONS AND ENVIRONMENTAL RISKS
We are subject to a wide range of federal, state and local laws and
regulations, such as local licensing requirements, consumer protection laws and
environmental requirements governing, among other things, discharges to the air
and water, the storage of petroleum substances and chemicals, the handling and
disposal of wastes, and the remediation of contamination arising from spills and
releases. The violation of those laws and regulations could result in civil and
criminal penalties being levied against us or in a cease and desist order
against operations that are not in compliance. Future acquisitions by us may
also be subject to governmental regulation, including antitrust reviews.
Although we believe that we substantially comply with all applicable laws and
regulations relating to our business, future laws and regulations or
11
<PAGE> 15
changes to existing laws or regulations may be more stringent and require us to
incur significant additional costs.
USE OF PROCEEDS
Unless otherwise provided in a prospectus supplement, we will use the net
proceeds from the sale of the securities offered by this prospectus and any
prospectus supplement for our general corporate purposes, which may include
repayment of indebtedness, the acquisition of additional automobile dealerships,
additions to our working capital, and capital expenditures.
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES PLUS DIVIDENDS
The following table contains our consolidated ratios of earnings to fixed
charges and earnings to fixed charges plus dividends for the periods indicated.
Since we did not commence dealership operations until November 1997, only the
financial information for periods after October 1997 reflects our combined
dealership operations. The financial information for periods prior to November
1997 are the results of the Howard Group, one of the founding groups.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------- -------------
1993 1994 1995 1996 1997 1998
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............. 2.28 1.86 1.98 2.32 2.16 2.69
Ratio of earnings to fixed charges plus
dividends.................................... 2.28 1.86 1.98 2.32 2.16 2.69
</TABLE>
For purposes of computing the ratios of earnings to fixed charges and
earnings to fixed charges plus dividends: (i) earnings consist of income before
provision for income taxes plus fixed charges (excluding capitalized interest)
and (ii) "fixed charges" consist of interest expensed and capitalized,
amortization of debt discount and expense relating to indebtedness and the
portion of rental expense representative of the interest factor attributable to
leases for rental property. There were no dividends paid or accrued during the
periods presented above.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be either our senior debt securities ("Senior Debt
Securities") or our subordinated debt securities ("Subordinated Debt
Securities"). The Senior Debt Securities and the Subordinated Debt Securities
will be issued under separate Indentures among us, our subsidiaries, if our
subsidiaries are guarantors of the Debt Securities, and a U.S. banking
institution (a "Trustee"). Senior Debt Securities will be issued under a "Senior
Indenture" and Subordinated Debt Securities will be issued under a "Subordinated
Indenture." Together the Senior Indenture and the Subordinated Indenture are
called "Indentures."
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series which are offered by a prospectus supplement
will be described in the prospectus supplement.
We have summarized selected provisions of the Indenture below. The summary
is not complete. The forms of the Indenture have been filed as exhibits to the
registration statement and you should read the Indentures for provisions that
may be important to you. In the summary below we have included references to
section numbers of the applicable Indentures so that you can easily locate these
provisions. Whenever we refer in this prospectus or in the prospectus supplement
to particular sections or defined terms of the Indenture, such sections or
defined terms are incorporated by reference herein or therein, as applicable.
Capitalized terms used in the summary have the meanings specified in the
Indentures.
GENERAL
The Indentures provide that Debt Securities in separate series may be
issued thereunder from time to time without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal
12
<PAGE> 16
amount for the Debt Securities of any series. (Section 301) We will determine
the terms and conditions of the Debt Securities, including the maturity,
principal and interest, but those terms must be consistent with the Indenture.
The Debt Securities will be our unsecured obligations.
The Subordinated Debt Securities will be subordinated in right of payment
to the prior payment in full of all of our Senior Debt (as defined) as described
under "-- Subordination of Subordinated Debt Securities" and in the prospectus
supplement applicable to any Subordinated Debt Securities.
If specified in the prospectus supplement, our subsidiaries (the
"Subsidiary Guarantors") will unconditionally guarantee (the "Subsidiary
Guarantees") on a joint and several basis the Debt Securities as described under
"Subsidiary Guarantees" and in the prospectus supplement. The Subsidiary
Guarantees will be unsecured obligations of each Subsidiary Guarantor.
The applicable prospectus supplement will set forth the price or prices at
which the Debt Securities to be offered will be issued and will describe the
following terms of such Debt Securities:
(1) the title of the Debt Securities;
(2) whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities and, if Subordinated Debt Securities, the
subordinated terms relating thereto;
(3) whether the Subsidiary Guarantors will provide Subsidiary
Guarantees of the Debt Securities;
(4) any limit on the aggregate principal amount of the Debt
Securities;
(5) the dates on which the principal of the Debt Securities will be
payable;
(6) the interest rate which the Debt Securities will bear and the
interest payment dates for the Debt Securities;
(7) the places where payments on the Debt Securities will be payable;
(8) any terms upon which the Debt Securities may be redeemed, in whole
or in part, at our option;
(9) any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities;
(10) the portion of the principal amount, if less than all, of the
Debt Securities which will be payable upon declaration of acceleration of
the Maturity of the Debt Securities;
(11) whether the Debt Securities are defeasible;
(12) any addition to or change in the Events of Default;
(13) any addition to or change in the covenants in the Indenture
applicable to any of the Debt Securities; and
(14) any other terms of the Debt Securities not inconsistent with the
provisions of the Indenture. (Section 301)
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their principal amount. Special United States
federal income tax considerations applicable to Debt Securities sold at an
original issue discount may be described in the applicable prospectus
supplement. In addition, special United States federal income tax or other
considerations applicable to any Debt Securities which are denominated in a
currency or currency unit other than United States dollars may be described in
the applicable prospectus supplement.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The indebtedness evidenced by the Subordinated Debt Securities will, to the
extent set forth in the Subordinated Indenture with respect to each series of
Subordinated Debt Securities, be subordinate in right of payment to the prior
payment in full of all of our Senior Debt, including the Senior Debt
13
<PAGE> 17
Securities. The prospectus supplement relating to any Subordinated Debt
Securities will summarize the subordination provisions of the Subordinated
Indenture applicable to that series including:
- the applicability and effect of such provisions upon any payment or
distribution of our assets to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors or marshaling of assets or any bankruptcy, insolvency or
similar proceedings;
- the applicability and effect of such provisions in the event of specified
defaults with respect to any or certain Senior Debt, including the
circumstances under which and the periods in which we will be prohibited
from making payments on the Subordinated Debt Securities; and
- the definition of Senior Debt applicable to the Subordinated Debt
Securities of that series.
The prospectus supplement will also describe as of a recent date the approximate
amount of Senior Debt to which the Subordinated Debt Securities of that series
will be subordinated.
The failure to make any payment on any of the Subordinated Debt Securities
by reason of the subordination provisions of the Subordinated Indenture
described in the prospectus supplement will not be construed as preventing the
occurrence of an Event of Default with respect to the Subordinated Debt
Securities arising from any such failure to make payment.
The subordination provisions described above will not be applicable to
payments in respect of the Subordinated Debt Securities from a defeasance trust
established in connection with any defeasance or covenant defeasance of the
Subordinated Debt Securities as described under "-- Defeasance and Covenant
Defeasance."
SUBSIDIARY GUARANTEES
If specified in the prospectus supplement, the Subsidiary Guarantors will
guarantee the Debt Securities of a series. Unless otherwise indicated in the
prospectus supplement, the following provisions will apply to the Subsidiary
Guarantees of the Subsidiary Guarantors.
Subject to the limitations described below and in the prospectus
supplement, the Subsidiary Guarantors will, jointly and severally,
unconditionally guarantee the performance and punctual payment when due, whether
at Stated Maturity, by acceleration or otherwise, of all our obligations under
the Indentures and the Debt Securities of a series, whether for principal of,
premium, if any, or interest on the Debt Securities or otherwise (all such
obligations guaranteed by a Subsidiary Guarantor being herein called the
"Guaranteed Obligations"). The Subsidiary Guarantors will also pay, in addition
to the amount stated above, any and all expenses (including reasonable counsel
fees and expenses) incurred by the applicable Trustee in enforcing any rights
under a Subsidiary Guarantee with respect to a Subsidiary Guarantor.
In the case of Subordinated Debt Securities, a Subsidiary Guarantor's
Subsidiary Guarantee will be subordinated in right of payment to the Senior Debt
of such Subsidiary Guarantor on the same basis as the Subordinated Debt
Securities are subordinated to our Senior Debt. No payment will be made by any
Subsidiary Guarantor under its Subsidiary Guarantee during any period in which
payments by us on the Subordinated Debt Securities are suspended by the
subordination provisions of the Subordinated Indenture.
Each Subsidiary Guarantee will be limited in amount to an amount not to
exceed the maximum amount that can be guaranteed by the relevant Subsidiary
Guarantor without rendering such Subsidiary Guarantee voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Each Subsidiary Guarantee will be a continuing guarantee and will:
(1) remain in full force and effect until either (a) payment in full
of all the Guaranteed Obligations (or the applicable Debt Securities are
defeased and discharged in accordance with the defeasance provisions of the
Indentures) or (b) released as described in the following paragraph,
(2) be binding upon each Subsidiary Guarantor and
14
<PAGE> 18
(3) inure to the benefit of and be enforceable by the applicable
Trustee, the Holders and their successors, transferees and assigns.
In the event that a Subsidiary Guarantor ceases to be a Restricted
Subsidiary, whether as a result of a disposition of all of the assets or all of
the Capital Stock of such Subsidiary Guarantor, by way of sale, merger,
consolidation or otherwise, such Subsidiary Guarantor will be deemed released
and relieved of its obligations under its Subsidiary Guarantee without any
further action required on the part of the Trustee or any Holder and no other
Person acquiring or owning the assets or Capital Stock of such Subsidiary
Guarantor (if not otherwise a Restricted Subsidiary) will be required to enter
into a Subsidiary Guarantee; provided, in each case, that the transaction or
transactions resulting in such Subsidiary Guarantor's ceasing to be a Restricted
Subsidiary are carried out pursuant to and in compliance with all of the
applicable covenants in the Indenture. In addition, the prospectus supplement
may specify additional circumstances under which a Subsidiary Guarantor can be
released from its Subsidiary Guarantee.
FORM, EXCHANGE AND TRANSFER
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable prospectus supplement, only in denominations of $1,000 and integral
multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the applicable
Indenture and the limitations applicable to Global Securities, Debt Securities
of each series will be exchangeable for other Debt Securities of the same series
of any authorized denomination and of a like tenor and aggregate principal
amount. (Section 305)
Subject to the terms of the applicable Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for exchange
as provided above or for registration of transfer (duly endorsed or with the
form of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by us for such
purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but we may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. Such
transfer or exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. The Security Registrar and any
other transfer agent initially designated by us for any Debt Securities will be
named in the applicable prospectus supplement. (Section 305) We may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that we will be required to maintain a transfer agent in each Place of
Payment for the Debt Securities of each series. (Section 1002).
If the Debt Securities of any series (or of any series and specified terms)
are to be redeemed in part, we will not be required to (i) issue, register the
transfer of or exchange any Debt Security of that series (or of that series and
specified terms, as the case may be) during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any such
Debt Security that may be selected for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer of or exchange
any Debt Security so selected for redemption, in whole or in part, except the
unredeemed portion of any such Debt Security being redeemed in part. (Section
305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Depositary or a nominee
thereof identified in the applicable prospectus supplement, will be deposited
with such Depositary or nominee or a custodian therefor and will bear a legend
regarding the restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be provided for pursuant to
the Indenture.
15
<PAGE> 19
Notwithstanding any provision of the applicable Indenture or any Debt
Security described herein, no Global Security may be exchanged in whole or in
part for Debt Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or any nominee of such Depositary unless:
(i) the Depositary has notified us that it is unwilling or unable to
continue as Depositary for such Global Security or has ceased to be
qualified to act as such as required by the applicable Indenture,
(ii) there shall have occurred and be continuing an Event of Default
with respect to the Debt Securities represented by such Global Security or
(iii) there shall exist such circumstances, if any, in addition to or
in lieu of those described above as may be described in the applicable
prospectus supplement.
All Debt Securities issued in exchange for a Global Security or any portion
thereof will be registered in such names as the Depositary may direct. (Sections
204 and 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities represented thereby for all purposes under the Debt Securities and
the applicable Indenture. Except in the limited circumstances referred to above,
owners of beneficial interests in a Global Security will not be entitled to have
such Global Security or any Debt Securities represented thereby registered in
their names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities
represented thereby for any purpose under the Debt Securities or the applicable
Indenture. All payments of principal of and any premium and interest on a Global
Security will be made to the Depositary or its nominee, as the case may be, as
the Holder thereof. The laws of some jurisdictions require that certain
purchasers of Debt Securities take physical delivery of such Debt Securities in
definitive form. These laws may impair the ability to transfer beneficial
interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of us, the Subsidiary Guarantors, the
Trustees or our agents, the Subsidiary Guarantors or the Trustees will have any
responsibility or liability for any aspect of the Depositary's or any
participant's records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
Unless otherwise indicated in the applicable prospectus supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as we
may designate for such purpose from time to time, except that at our option
payment of any interest may be made by check mailed to the address of the Person
entitled thereto as such address
16
<PAGE> 20
appears in the Security Register. Unless otherwise indicated in the applicable
prospectus supplement, the corporate trust office of the trustee under the
Senior Indenture (the "Senior Trustee") in The City of New York will be
designated as sole Paying Agent for payments with respect to Senior Debt
Securities of each series and the corporate trust office of the Subordinated
Trustee in the City of New York will be designated as the sole Paying Agent for
payment with respect to Subordinated Debt Securities of each series. Any other
Paying Agents initially designated by us for the Debt Securities of a particular
series will be named in the applicable prospectus supplement. We may at any time
designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that we will be required to maintain a Paying Agent in each Place of
Payment for the Debt Securities of a particular series. (Section 1002)
All moneys paid by us to a Paying Agent for the payment of the principal of
or any premium or interest on any Debt Security which remain unclaimed at the
end of two years after such principal, premium or interest has become due and
payable will be repaid to us, and the Holder of such Debt Security thereafter
may look only to us for payment thereof. (Section 1003)
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into, or convey, transfer or lease our
properties and assets substantially as an entirety to, any Person (a "successor
Person"), and may not permit any Person to merge into, or convey, transfer or
lease its properties and assets substantially as an entirety to, us, unless:
(i) the successor Person (if any) is a corporation, partnership, trust
or other entity organized and validly existing under the laws of any
domestic jurisdiction and assumes our obligations on the Debt Securities
and under the Indentures,
(ii) immediately after giving effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing and
(iii) certain other conditions, including any additional conditions
with respect to any particular Debt Securities specified in the applicable
prospectus supplement, are met. (Section 801)
EVENTS OF DEFAULT
Unless otherwise specified in the prospectus supplement, each of the
following will constitute an Event of Default under the applicable Indenture
with respect to Debt Securities of any series:
(1) failure to pay principal of or any premium on any Debt Security of
that series when due, whether or not, in the case of Subordinated Debt
Securities, such payment is prohibited by the subordination provisions of
the Subordinated Indenture;
(2) failure to pay any interest on any Debt Securities of that series
when due, continued for 30 days, whether or not, in the case of
Subordinated Debt Securities, such payment is prohibited by the
subordination provisions of the Subordinated Indenture;
(3) failure to deposit any sinking fund payment, when due, in respect
of any Debt Security of that series, whether or not, in the case of
Subordinated Debt Securities, such deposit is prohibited by the
subordination provisions of the Subordinated Indenture;
(4) failure to perform or comply with the provisions described under
"Consolidation, Merger and Sale of Assets";
(5) failure to perform any of our other covenants in such Indenture
(other than a covenant included in such Indenture solely for the benefit of
a series other than that series), continued for 60 days after written
notice has been given by the Trustee, or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series, as
provided in such Indenture;
(6) default under the terms of any instrument evidencing or securing
any of our Debt or any Restricted Subsidiary having an outstanding
principal amount of $10 million individually or in the aggregate which
default results in the acceleration of the payment of all or any portion of
such Debt
17
<PAGE> 21
(which acceleration is not rescinded within a period of 10 days from the
occurrence of such acceleration) or constitutes the failure to pay all or
any portion of the principal amount of such Debt when due;
(7) the rendering of a final judgment or judgments (not subject to
appeal) against us or any Restricted Subsidiary in an amount in excess of
$10 million which remains undischarged or unstayed for a period of 60 days
after the date on which the right to appeal has expired;
(8) certain events of bankruptcy, insolvency or reorganization
affecting us, any Significant Restricted Subsidiary or any group of
Restricted Subsidiaries that together would constitute a Significant
Restricted Subsidiary; and
(9) in the case of Debt Securities guaranteed by any Subsidiary
Guarantor, the Subsidiary Guarantee of any Subsidiary Guarantor is held by
a final non-appealable order or judgment of a court of competent
jurisdiction to be unenforceable or invalid or ceases for any reason to be
in full force and effect (other than in accordance with the terms of the
applicable Indenture) or any Subsidiary Guarantor or any Person acting on
behalf of any Subsidiary Guarantor denies or disaffirms such Subsidiary
Guarantor's obligations under its Subsidiary Guarantee (other than by
reason of a release of such Subsidiary Guarantor from its Subsidiary
Guarantee in accordance with the terms of the applicable Indenture).
(Section 501)
If an Event of Default (other than an Event of Default described in clause
(8) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the applicable Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series by notice as provided in the Indenture may declare the
principal amount of the Debt Securities of that series (or, in the case of any
Debt Security that is an Original Issue Discount Debt Security or the principal
amount of which is not then determinable, such portion of the principal amount
of such Debt Security, or such other amount in lieu of such principal amount, as
may be specified in the terms of such Debt Security) to be due and payable
immediately. If an Event of Default described in clause (8) above with respect
to the Debt Securities of any series at the time Outstanding shall occur, the
principal amount of all the Debt Securities of that series (or, in the case of
any such Original Issue Discount Security or other Debt Security, such specified
amount) will automatically, and without any action by the applicable Trustee or
any Holder, become immediately due and payable. After any such acceleration, but
before a judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal (or other
specified amount), have been cured or waived as provided in the applicable
Indenture. (Section 502) For information as to waiver of defaults, see
"Modification and Waiver".
Subject to the provisions of the Indentures relating to the duties of the
Trustees in case an Event of Default shall occur and be continuing, each Trustee
will be under no obligation to exercise any of its rights or powers under the
applicable Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to such Trustee reasonable indemnity. (Section
603) Subject to such provisions for the indemnification of the Trustees, the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee under the applicable Indenture
written notice of a continuing Event of Default with respect to the Debt
Securities of that series, (ii) the Holders of at least 25% in aggregate
principal amount of the Outstanding Debt Securities of that series have made
written request, and such Holder or Holders have offered reasonable indemnity,
to the Trustee to institute such proceeding as trustee and (iii) the Trustee has
failed to institute such proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the Outstanding
18
<PAGE> 22
Debt Securities of that series a direction inconsistent with such request,
within 60 days after such notice, request and offer. (Section 507) However, such
limitations do not apply to a suit instituted by a Holder of a Debt Security for
the enforcement of payment of the principal of or any premium or interest on
such Debt Security on or after the applicable due date specified in such Debt
Security. (Section 508)
We will be required to furnish to each Trustee annually a statement by
certain of our officers as to whether or not we, to their knowledge, are in
default in the performance or observance of any of the terms, provisions and
conditions of the applicable Indenture and, if so, specifying all such known
defaults. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by us, the
Subsidiary Guarantors and the applicable Trustee with the consent of the Holders
of a majority in aggregate principal amount of the Outstanding Debt Securities
of each series affected by such modification or amendment; provided, however,
that no such modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security,
(2) reduce the principal amount of, or any premium or interest on, any
Debt Security,
(3) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of the
Maturity thereof,
(4) change the place or currency of payment of principal of, or any
premium or interest on, any Debt Security,
(5) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security,
(6) in the case of Subordinated Debt Securities, modify the
subordination provisions in a manner adverse to the Holders of the
Subordinated Debt Securities,
(7) except as provided in the applicable Indenture, release the
Subsidiary Guarantee of a Subsidiary Guarantor,
(8) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indenture,
(9) reduce the percentage in principal amount of Outstanding Debt
Securities of any series necessary for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults or
(10) modify such provisions with respect to modification and waiver.
(Section 902)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may waive compliance by us with certain restrictive
provisions of the applicable Indenture. The Holders of a majority in principal
amount of the Outstanding Debt Securities of any series may waive any past
default under the applicable Indenture, except a default in the payment of
principal, premium or interest and certain covenants and provisions of the
Indenture which cannot be amended without the consent of the Holder of each
Outstanding Debt Security of such series affected. (Section 513)
The Indentures provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under such
Indenture as of any date, (i) the principal amount of an Original Issue Discount
Security that will be deemed to be Outstanding will be the amount of the
principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date, (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Debt Security and (iii) the
19
<PAGE> 23
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be the
U.S. dollar equivalent, determined as of such date in the manner prescribed for
such Debt Security, of the principal amount of such Debt Security (or, in the
case of a Debt Security described in clause (i) or (ii) above, of the amount
described in such clause). Certain Debt Securities, including those for whose
payment or redemption money has been deposited or set aside in trust for the
Holders and those that have been fully defeased pursuant to Section 1302, will
not be deemed to be Outstanding. (Section 101)
Except in certain limited circumstances, we will be entitled to set any day
as a record date for the purpose of determining the Holders of Outstanding Debt
Securities of any series entitled to give or take any direction, notice,
consent, waiver or other action under the applicable Indenture, in the manner
and subject to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by
Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding Debt Securities of that series on the record date. To be effective,
such action must be taken by Holders of the requisite principal amount of such
Debt Securities within a specified period following the record date. For any
particular record date, this period will be 180 days or such other period as may
be specified by us (or the Trustee, if it set the record date), and may be
shortened or lengthened (but not beyond 180 days) from time to time. (Section
104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable prospectus supplement, we
may elect, at our option at any time, to have the provisions of Section 1502,
relating to defeasance and discharge of indebtedness, or Section 1503, relating
to defeasance of certain restrictive covenants applied to the Debt Securities of
any series, or to any specified part of a series. (Section 1501)
Defeasance and Discharge. The Indentures provide that, upon our exercise
of our option (if any) to have Section 1502 applied to any Debt Securities, we
and, if applicable, each Subsidiary Guarantor will be discharged from all our
obligations, and, if such Debt Securities are Subordinated Debt Securities, the
provisions of the Subordinated Indenture relating to subordination will cease to
be effective, with respect to such Debt Securities (except for certain
obligations to exchange or register the transfer of Debt Securities, to replace
stolen, lost or mutilated Debt Securities, to maintain paying agencies and to
hold moneys for payment in trust) upon the deposit in trust for the benefit of
the Holders of such Debt Securities of money or U.S. Government Obligations, or
both, which, through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the applicable
Indenture and such Debt Securities. Such defeasance or discharge may occur only
if, among other things,
(i) we have delivered to the applicable Trustee an Opinion of Counsel
to the effect that we have received from, or there has been published by,
the United States Internal Revenue Service a ruling, or there has been a
change in tax law, in either case to the effect that Holders of such Debt
Securities will not recognize gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject
to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and
discharge were not to occur;
(ii) no Event of Default or event that with the passing of time or the
giving of notice, or both, shall constitute an Event of Default shall have
occurred or be continuing;
(iii) such deposit, defeasance and discharge will not result in a
breach or violation of, or constitute a default under, any agreement or
instrument to which we or any Restricted Subsidiary is a party or by which
we or any Restricted Subsidiary is bound;
(iv) in the case of Subordinated Debt Securities, at the time of such
deposit, no default in the payment of all or a portion of principal of (or
premium, if any) or interest on or other obligations in respect of any of
our Senior Debt shall have occurred and be continuing and no other event of
default
20
<PAGE> 24
with respect to any of our Senior Debt shall have occurred and be
continuing permitting after notice or the lapse of time, or both, the
acceleration thereof; and
(v) we have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit shall not cause the Trustee or the trust so
created to be subject to the Investment Company Act of 1940. (Sections 1502
and 1504)
Defeasance of Certain Covenants. The Indentures provide that, upon our
exercise of our option (if any) to have Section 1503 applied to any Debt
Securities, we may omit to comply with certain restrictive covenants, including
those that may be described in the applicable prospectus supplement, the
occurrence of certain Events of Default, which are described above in clause (5)
(with respect to such restrictive covenants) and clauses (6) and (7) under
"Events of Default" and any that may be described in the applicable prospectus
supplement, will not be deemed to either be or result in an Event of Default
and, if such Debt Securities are Subordinated Debt Securities, the provisions of
the Subordinated Indenture relating to subordination will cease to be effective,
in each case with respect to such Debt Securities. In order to exercise such
option, we must deposit, in trust for the benefit of the Holders of such Debt
Securities, money or U.S. Government Obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
any premium and interest on such Debt Securities on the respective Stated
Maturities in accordance with the terms of the applicable Indenture and such
Debt Securities. Such covenant defeasance may occur only if we have delivered to
the applicable Trustee an Opinion of Counsel that in effect says that Holders of
such Debt Securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain obligations and
will be subject to federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit and defeasance
were not to occur and the requirements set forth in clauses (ii), (iii), (iv)
and (v) above are satisfied. If we exercise this option with respect to any Debt
Securities and such Debt Securities were declared due and payable because of the
occurrence of any Event of Default, the amount of money and U.S. Government
Obligations so deposited in trust would be sufficient to pay amounts due on such
Debt Securities at the time of their respective Stated Maturities but may not be
sufficient to pay amounts due on such Debt Securities upon any acceleration
resulting from such Event of Default. In such case, we would remain liable for
such payments. (Sections 1503 and 1504)
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
TITLE
We, the Subsidiary Guarantors, the Trustees and any agent of us, the
Subsidiary Guarantors or a Trustee may treat the Person in whose name a Debt
Security is registered as the absolute owner of the Debt Security (whether or
not such Debt Security may be overdue) for the purpose of making payment and for
all other purposes. (Section 308)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the law of the State of New York. (Section 112)
DESCRIPTION OF CAPITAL STOCK
As of December 31, 1998, our authorized capital stock was 51,000,000
shares. Those shares consisted of: (a) 1,000,000 shares of preferred stock, none
of which were outstanding; and (b) 50,000,000 shares of common stock, of which
18,230,149 shares were outstanding.
21
<PAGE> 25
COMMON STOCK
Subject to any special voting rights of any series of preferred stock that
we may issue in the future, the holders of the common stock may vote one vote
for each share held on all matters voted upon by our stockholders, including the
election of our directors. Holders of common stock may not cumulate their votes
in elections of directors.
Subject to the rights of any then outstanding shares of preferred stock,
the holders of common stock may receive such dividends as our Board of Directors
may declare in its discretion out of legally available funds. Holders of common
stock will share equally in our net assets upon liquidation after payment or
provision for all liabilities and any preferential liquidation rights of any
preferred stock then outstanding. The holders of common stock have no preemptive
rights to purchase our shares of stock. Shares of common stock are not subject
to any redemption provisions and are not convertible into any of our other
securities. All outstanding shares of common stock are fully paid and
non-assessable. Any additional common stock we issue will also be fully paid and
non-assessable.
PREFERRED STOCK
The prospectus supplement will specify any terms of any series of preferred
stock offered by it including:
- the series, the number of shares offered and the liquidation value of the
preferred stock,
- the price at which the preferred stock will be issued,
- the dividend rate, the dates on which the dividends will be payable and
other terms relating to the payment of dividends on the preferred stock,
- the liquidation preference of the preferred stock,
- the voting rights of the preferred stock,
- whether the preferred stock is redeemable or subject to a sinking fund,
and the terms of any such redemption or sinking fund,
- whether the preferred stock is convertible or exchangeable for any other
securities, and the terms of any such conversion, and
- any additional rights, preferences, qualifications, limitations and
restrictions of the preferred stock.
The description of the terms of the preferred stock to be set forth in an
applicable prospectus supplement will not be complete and will be subject to and
qualified in its entirety by reference to the statement of resolution relating
to the applicable series of preferred stock. The registration statement of which
this prospectus forms a part will include the statement of resolution as an
exhibit or incorporate it by reference.
We may issue preferred stock from time to time in one or more series.
Subject to the provisions of our Restated Certificate of Incorporation and
limitations prescribed by law, our Board of Directors may adopt resolutions to
issue the shares of preferred stock, to fix the number of shares, and to change
the number of shares constituting any series and establish the voting powers,
designations, preferences and relative participating, optional or other special
rights, qualifications, limitations or restrictions thereof, including dividend
rights (including whether dividends are cumulative), dividend rates, terms of
redemption (including sinking fund provisions), redemption prices, conversion
rights and liquidation preferences of the shares constituting any series of
preferred stock, in each case without any further action or vote by our
stockholders.
Undesignated preferred stock may enable our Board of Directors to render
more difficult or to discourage an attempt to obtain control of us by means of a
tender offer, proxy contest, merger or otherwise, and to thereby protect the
continuity of our management. The issuance of shares of preferred stock may
adversely affect the rights of the holders of our common stock or any existing
preferred stock. For example, any preferred stock issued may rank prior to our
common stock or any existing preferred stock as to dividend rights, liquidation
preference or both, may have full or limited voting rights and may
22
<PAGE> 26
be convertible into shares of common stock or any existing preferred stock. As a
result, the issuance of shares of preferred stock may discourage bids for our
common stock or may otherwise adversely affect the market price of our common
stock or any existing preferred stock.
ANTI-TAKEOVER PROVISIONS
Certain provisions in our Restated Certificate of Incorporation and Bylaws
and our stockholders' rights plan may encourage persons considering unsolicited
tender offers or other unilateral takeover proposals to negotiate with our Board
of Directors rather than pursue non-negotiated takeover attempts.
Classified Board of Directors and Limitations on Removal of Directors. Our
Board of Directors is divided into three classes. The directors of each class
are elected for three-year terms, and the terms of the three classes are
staggered so that directors from a single class are elected at each annual
meeting of stockholders. Stockholders may remove a director only for cause and
upon the vote of holders of at least 80% of the voting power of the outstanding
shares of common stock. In general, our Board of Directors, not the
stockholders, has the right to appoint persons to fill vacancies on the Board of
Directors.
No Written Consent by Stockholders. Our Restated Certificate of
Incorporation provides that any action required or permitted to be taken by our
stockholders must be taken at a duly called annual or special meeting of our
stockholders. Special meetings of our stockholders may be called only by our
Board of Directors.
Business Combinations under Delaware Law. We are a Delaware corporation
and are subject to Section 203 of the Delaware General Corporation Law. Section
203 prevents a person who owns 15% or more of our outstanding voting stock (an
"interested stockholder") from engaging in certain business combinations with us
for three years following the date that the person become an interested
stockholder. These restrictions do not apply if:
- before the person became an interested stockholder, our Board of
Directors approved the transaction in which the interested stockholder
became an interested stockholder or the business combination;
- upon completion of the transaction that resulted in the interested
stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of our outstanding voting stock at the time
the transaction commenced; or
- following the transaction in which the person became an interested
stockholder, the business combination is approved by both our Board of
Directors and the holders of at least two-thirds of our outstanding
voting stock not owned by the interested stockholder.
These restrictions do not apply to certain business combinations proposed
by an interested stockholder following the announcement of certain extraordinary
transactions involving us and a person who was not an interested stockholder
during the previous three years or who became an interested stockholder with the
approval of a majority of our directors, if that extraordinary transaction is
approved or goes unopposed by a majority of our directors who were directors
before any person became an interested stockholder in the previous three years
or who were recommended for election or elected to succeed such directors by a
majority of such directors then in office.
Stockholders' Rights Plan. Our Board of Directors has adopted a
stockholders' rights plan (the "Rights Plan"). Under the Rights Plan, each Right
entitles the registered holder under the circumstances described below to
purchase from us one one-thousandth of a share of our Junior Participating
Preferred Stock (the "Preferred Shares") at a price of $65 per one
one-thousandth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The following is a summary of certain terms of the Rights Plan. The
Rights Plan is filed as an exhibit to the registration statement of which this
prospectus is a part and this summary is qualified by reference to the specific
terms of the Rights Plan.
Until the Distribution Date (as defined below), the Rights attach to all
common stock certificates representing outstanding shares. No separate Right
Certificate will be distributed. A Right is issued for
23
<PAGE> 27
each share of common stock issued. The Rights will separate from the common
stock and a Distribution Date will occur upon the earlier of
- 10 business days following a public announcement that a person or group
of affiliated or associated persons (an "Acquiring Person") has acquired
beneficial ownership of 20% or more of our outstanding Voting Shares (as
defined in the Rights Agreement), or
- 10 business days following the commencement or announcement of an
intention to commence a tender offer or exchange offer the consummation
of which would result in the person or group beneficially owning 20% or
more of our outstanding Voting Shares.
Until the Distribution Date or the earlier of redemption or expiration of
the Rights, the Rights are evidenced by the certificates representing the common
stock. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights (the "Rights Certificates") will be mailed to
holders of record of the common stock as of the close of business on the
Distribution Date and such separate Right Certificates alone will thereafter
evidence the Rights.
The Rights are not exercisable until the Distribution Date. The rights will
expire on November 4, 2007 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or the Rights are earlier redeemed or exchanged.
If a person or group acquires 20% or more of our Voting Shares, each Right
then outstanding (other than Rights beneficially owned by the Acquiring Persons
which would become null and void) becomes a right to buy that number of shares
of common stock (or under certain circumstances, the equivalent number of one
one-thousandths of a Preferred Share) that at the time of such acquisition has a
market value of two times the Purchase Price of the Right.
If we are acquired in a merger or other business combination transaction or
assets constituting more than 50% of our consolidated assets or producing more
than 50% of our earning power or cash flow are sold, proper provision will be
made so that each holder of a Right will thereafter have the right to receive,
upon the exercise thereof at the then current Purchase Price of the Right, that
number of shares of common stock of the acquiring company which at the time of
such transaction has a market value of two times the Purchase Price of the
Right.
The dividend and liquidation rights, and the non-redemption feature, of the
Preferred Shares are designed so that the value of one one-thousandth of a
Preferred Share purchasable upon exercise of each Right will approximate the
value of one share of common stock. The Preferred Shares issuable upon exercise
of the Rights will be non-redeemable and rank junior to all other series of our
preferred stock. Each whole Preferred Share will be entitled to receive a
quarterly preferential dividend in an amount per share equal to the greater of
(i) $1.00 in cash, or (ii) in the aggregate, 1,000 times the dividend declared
on the common stock. In the event of liquidation, the holders of Preferred
Shares may receive a preferential liquidation payment equal to the greater of
(i) $1,000 per share, or (ii) in the aggregate, 1,000 times the payment made on
the shares of common stock. In the event of any merger, consolidation or other
transaction in which the shares of common stock are exchanged for or changed
into other stock or securities, cash or other property, each whole Preferred
Share will be entitled to receive 1,000 times the amount received per share of
common stock. Each whole Preferred Share will be entitled to 1,000 votes on all
matters submitted to a vote of our stockholders and Preferred Shares will
generally vote together as one class with the common stock and any other capital
stock on all matters submitted to a vote of our stockholders.
The number of outstanding Rights and the number of one one-thousandths of a
Preferred Share or other securities or property issuable upon exercise of the
Rights, and the Purchase Price payable, may be adjusted from time to time to
prevent dilution.
At any time after a person or group of affiliated or associated persons
acquires beneficial ownership of 20% or more of our outstanding Voting Shares
and before a person or group acquires beneficial ownership of 50% or more of our
outstanding Voting Shares our Board of Directors may, at its option, issue
common stock in mandatory redemption of, and in exchange for, all or part of the
then outstanding and exercisable Rights (other than Rights owned by such person
or group which would become null and void) at an
24
<PAGE> 28
exchange ratio of one share of common stock (or one one-thousandth of a
Preferred Share) for each two shares of common stock for which each Right is
then exercisable, subject to adjustment.
At any time prior to the first public announcement that a person or group
has become the beneficial owner of 20% or more of the outstanding Voting Shares,
our Board of Directors may redeem all but not less than all the then outstanding
Rights at a price of $0.01 per Right (the "Redemption Price"). The redemption of
the rights may be made effective at such time, on such basis and with such
conditions as our Board of Directors in its sole discretion may establish.
Immediately upon the action of our Board of Directors ordering redemption of the
rights, the right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
LIMITATION OF LIABILITY OF OFFICERS AND DIRECTORS
Delaware law authorizes corporations to limit or eliminate the personal
liability of officers and directors to corporations and their stockholders for
monetary damages for breach of officers' and directors' fiduciary duty of care.
The duty of care requires that, when acting on behalf of the corporation,
officers and directors must exercise an informed business judgment based on all
material information reasonably available to them. Absent the limitations
authorized by Delaware law, officers and directors are accountable to
corporations and their stockholders for monetary damages for conduct
constituting gross negligence in the exercise of their duty of care. Delaware
law enables corporations to limit available relief to equitable remedies such as
injunction or rescission.
Our Restated Certificate of Incorporation limits the liability of our
officers and directors to us and our stockholders to the fullest extent
permitted by Delaware law. Specifically, our officers and directors will not be
personally liable for monetary damages for breach of an officer's or director's
fiduciary duty in such capacity, except for liability
- for any breach of the officer's or director's duty of loyalty to us or
our stockholders,
- for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law,
- for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation law, or
- for any transaction from which the officer or director derived an
improper personal benefit.
The inclusion of this provision in our Restated Certificate of
Incorporation may reduce the likelihood of derivative litigation against our
officers and directors, and may discourage or deter stockholders or management
from bringing a lawsuit against our officers and directors for breach of their
duty of care, even though such an action, if successful, might have otherwise
benefitted us and our stockholders.
Both our Restated Certificate of Incorporation and Bylaws provide
indemnification to our officers and directors and certain other persons with
respect to certain matters to the maximum extent allowed by Delaware law as it
exists now or may hereafter be amended. These provisions do not alter the
liability of officers and directors under federal securities laws and do not
affect the right to sue (nor to recover monetary damages) under federal
securities laws for violations thereof.
TRANSFER AGENT AND REGISTRAR
Our transfer agent and registrar of the common stock, as well as the rights
agent under our Rights Plan, is ChaseMellon Shareholder Services, L.L.C.
25
<PAGE> 29
DEPOSITARY SHARES
GENERAL
We may offer fractional shares of preferred stock, rather than full shares
of preferred stock. If we decide to offer fractional shares of preferred stock,
we will issue receipts for depositary shares. Each depositary share will
represent a fraction of a share of a particular series of preferred stock. The
prospectus supplement will indicate that fraction. The shares of preferred stock
represented by depositary shares will be deposited under a deposit agreement
between us and a bank or trust company that meets certain requirements and is
selected by us (the "Depositary"). Each owner of a depositary share will be
entitled to all the rights and preferences of the preferred stock represented by
the depositary share. The depositary shares will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Depositary receipts will be
distributed to those persons purchasing the fractional shares of preferred stock
in accordance with the terms of the offering.
We have summarized selected provisions of the deposit agreement and the
depositary receipts. The summary is not complete. The forms of the deposit
agreement and the depositary receipts are filed as exhibits to the registration
statement and you should read such documents for provisions that may be
important to you.
DIVIDENDS AND OTHER DISTRIBUTIONS
If we pay a cash distribution or dividend on a series of preferred stock
represented by depositary shares, the Depositary will distribute such dividends
to the record holders of such depositary shares. If the distributions are in
property other than cash, the Depositary will distribute the property to the
record holders of the depositary shares. However, if the Depositary determines
that it is not feasible to make the distribution of property, the Depositary
may, with our approval, sell such property and distribute the net proceeds from
such sale to the holders of the preferred stock.
REDEMPTION OF DEPOSITARY SHARES
If we redeem a series of preferred stock represented by depositary shares,
the Depositary will redeem the depositary shares from the proceeds received by
the Depositary in connection with the redemption. The redemption price per
depositary share will equal the applicable fraction of the redemption price per
share of the preferred stock. If fewer than all the depositary shares are
redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as the Depositary may determine.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock represented by depositary shares are entitled to vote, the Depositary will
mail the notice to the record holders of the depositary shares relating to such
preferred stock. Each record holder of these depositary shares on the record
date (which will be the same date as the record date for the preferred stock)
may instruct the Depositary as to how to vote the preferred stock represented by
such holder's depositary shares. The Depositary will endeavor, insofar as
practicable, to vote the amount of the preferred stock represented by such
depositary shares in accordance with such instructions, and we will take all
action which the Depositary deems necessary in order to enable the Depositary to
do so. The Depositary will abstain from voting shares of the preferred stock to
the extent it does not receive specific instructions from the holders of
depositary shares representing such preferred stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement between the
Depositary and us. However, any amendment that materially and adversely alters
the rights of the holders of depositary shares will not be effective unless such
amendment has been approved by the holders of at least a majority of the
depositary shares then outstanding. The deposit agreement may be terminated by
the Depositary or us only if (i) all outstanding depositary shares have been
redeemed or (ii) there has been a final distribution in respect of the preferred
26
<PAGE> 30
stock in connection with any liquidation, dissolution or winding up of us and
such distribution has been distributed to the holders of depositary receipts.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. We will pay charges of the
Depositary in connection with the initial deposit of the preferred stock and any
redemption of the preferred stock. Holders of depositary receipts will pay other
transfer and other taxes and governmental charges and any other charges,
including a fee for the withdrawal of shares of preferred stock upon surrender
of depositary receipts, as are expressly provided in the deposit agreement to be
for their accounts.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of depositary receipts at the principal office of the Depositary,
subject to the terms of the deposit agreement, the owner of the depositary
shares may demand delivery of the number of whole shares of preferred stock and
all money and other property, if any, represented by those depositary shares.
Partial shares of preferred stock will not be issued. If the depositary receipts
delivered by the holder evidence a number of Depositary shares in excess of the
number of depositary shares representing the number of whole shares of preferred
stock to be withdrawn, the Depositary will deliver to such holder at the same
time a new depositary receipt evidencing the excess number of depositary shares.
Holders of preferred stock thus withdrawn may not thereafter deposit those
shares under the deposit agreement or receive depositary receipts evidencing
depositary shares therefor.
MISCELLANEOUS
The Depositary will forward to holders of depositary receipts all reports and
communications from us that are delivered to the Depositary and that we are
required to furnish to the holders of the preferred stock.
Neither the Depositary nor us will be liable if we are prevented or delayed by
law or any circumstance beyond our control in performing our obligations under
the deposit agreement. The obligations of the Depositary and us under the
deposit agreement will be limited to performance in good faith of our duties
thereunder, and we will not be obligated to prosecute or defend any legal
proceeding in respect of any depositary shares or preferred stock unless
satisfactory indemnity is furnished. We may rely upon written advice of counsel
or accountants, or upon information provided by persons presenting preferred
stock for deposit, holders of depositary receipts or other persons believed to
be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to us notice of its election
to do so, and we may at any time remove the Depositary. Any such resignation or
removal will take effect upon the appointment of a successor Depositary and its
acceptance of such appointment. Such successor Depositary must be appointed
within 60 days after delivery of the notice of resignation or removal and must
be a bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
PLAN OF DISTRIBUTION
We may sell securities pursuant to this prospectus (a) through underwriters
or dealers; (b) through agents; or (c) directly to one or more purchasers,
including existing stockholders in a rights offering.
BY UNDERWRITERS
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account. The underwriters may resell
the securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be
subject to certain conditions. Unless indicated in the prospectus supplement the
underwriters must purchase all the securities of the series
27
<PAGE> 31
offered by a prospectus supplement if any of the securities are purchased. Any
initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
BY AGENTS
Securities offered by us pursuant to this prospectus may also be sold
through agents designated by us. Unless indicated in the prospectus supplement,
any such agent is acting on a best efforts basis for the period of its
appointment.
DIRECT SALES; RIGHTS OFFERINGS
Securities offered by us pursuant to this prospectus may also be sold
directly by us. In this case, no underwriters or agents would be involved. We
may sell offered securities upon the exercise of rights which may be issued to
our securityholders.
DELAYED DELIVERY ARRANGEMENTS
We may authorize agents, underwriters or dealers to solicit offers by
certain institutional investors to purchase offered securities providing for
payment and delivery on a future date specified in the prospectus supplement.
Institutional investors to which such offers may be made, when authorized,
include commercial and savings banks, insurance companies, pension funds,
investment companies, education and charitable institutions and such other
institutions as may be approved by us. The obligations of any such purchasers
under such delayed delivery and payment arrangements will be subject to the
condition that the purchase of the offered securities will not at the time of
delivery be prohibited under applicable law. The underwriters and such agents
will not have any responsibility with respect to the validity or performance of
such contracts.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution of
offered securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from us and any profit on the resale
of the offered securities by them may be treated as underwriting discounts and
commissions under the Securities Act. Any underwriters or agents will be
identified and their compensation described in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Act, or to contribute with respect to payments which the underwriters,
dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our subsidiaries in the ordinary course of their
businesses.
LEGAL MATTERS
Our legal counsel, Vinson & Elkins L.L.P., Houston, Texas, will pass upon
certain legal matters in connection with the offered securities. Any
underwriters will be advised about other issues relating to any offering by
their own legal counsel.
EXPERTS
Arthur Andersen LLP, independent public accountants, audited the financial
statements included in our annual report on Form 10-K for the year ended
December 31, 1997 incorporated by reference in this prospectus and elsewhere in
the registration statement. These documents are incorporated by reference herein
in reliance upon the authority of Arthur Andersen LLP as experts in accounting
and auditing in giving the report.
Crowe, Chizek and Company LLP, independent public accountants, audited the
financial statements of the Carroll Automotive Group included in the Current
Report on Form 8-K dated May 28, 1998, incorporated by reference in this
prospectus and elsewhere in the registration statement. These documents are
incorporated by reference herein in reliance upon the authority of Crowe, Chizek
and Company LLP as experts in accounting and auditing in giving the report.
28
<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the distribution of the securities covered by this Registration Statement. All
of the expenses will be borne by the Company except as otherwise indicated.
<TABLE>
<S> <C>
Registration fee............................................ $ 69,500
Fees and expenses of accountants............................ 250,000
Fees and expenses of legal counsel.......................... 150,000
Fees and expenses of Trustee and counsel.................... 25,000
Printing and engraving expenses............................. 100,000
Miscellaneous............................................... 6,500
--------
Total............................................. $600,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Sixth, Part II, Section I of the Company's Charter, a copy of which
is filed as Exhibit 3.1, provides that directors, officers, employees and agents
shall be indemnified to the fullest extent permitted by Section 145 of the DGCL.
Section 145 of the DGCL authorizes, inter alia, a corporation to indemnify
any person ("indemnitee") who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that such person
is or was an officer or director of such corporation, or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. A
Delaware corporation may indemnify past or present officers and directors of
such corporation or of another corporation or other enterprise at the former
corporation's request, in an action by or in the right of the corporation to
procure a judgment in its favor under the same conditions, except that no
indemnification is permitted without judicial approval if such person is
adjudged to be liable to the corporation. Where an officer or director is
successful on the merits or otherwise in defense of any action referred to
above, or in defense of any claim, issue or matter therein, the corporation must
indemnify him against the expenses (including attorney's fees) which he actually
and reasonably incurred in connection therewith. Section 145 further provides
that any indemnification shall be made by the corporation only as authorized in
each specific case upon a determination by the (i) stockholders, (ii) Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding or (iii) independent counsel if a
quorum of disinterested directors so directs. Section 145 provides that
indemnification pursuant to its provision is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
Section 145 of the DGCL also empowers the Company to purchase and maintain
insurance on behalf of any person who is or was an officer or director of the
Company against liability asserted against or incurred by him in any such
capacity, whether or not the Company would have the power to indemnify such
officer or director against such liability under the provisions of Section 145.
The Company intends to purchase and maintain a directors' and officers'
liability policy for such purposes.
The form of Underwriting Agreements filed as Exhibits 1.1, 1.2 and 1.3 to
this Registration Statement contains certain provisions for indemnification of
directors and officers of the Company and the Underwriters against civil
liabilities under the Securities Act.
II-1
<PAGE> 33
ITEM 16. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated herein by reference to a prior
filing of the Company under the Securities Act or the Exchange Act as indicated
in parenthesis:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
*1.1 -- Form of Underwriting Agreement (Debt Securities).
*1.2 -- Form of Underwriting Agreement (Preferred Stock).
*1.3 -- Form of Underwriting Agreement (Common Stock).
4.1 -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-29893)).
4.2 -- Bylaws of the Company (incorporated by reference to
Exhibit 3.3 to the Company's Registration Statement on
Form S-1 (Registration No. 333-29893)).
4.3 -- Certificate of Designation of Series A Junior
Participating Preferred Stock (incorporated by reference
to Exhibit 3.2 of the Company's Registration Statement on
Form S-1 (Registration No. 333-29893)).
***4.4 -- Form of Senior Indenture.
***4.5 -- Form of Subordinated Indenture.
***4.6 -- Form of Senior Debt Securities (included in Exhibit 4.4).
***4.7 -- Form of Subordinated Debt Securities (included in Exhibit
4.5).
4.8 -- Rights Agreement between the Company and ChaseMellon
Shareholders Services, L.L.C., as rights agent dated
October 3, 1997 (incorporated by reference to Exhibit
10.10 of the Company's Registration Statement on Form S-1
(Registration No. 333-29893)).
4.9 -- Second Amended and Restated Revolving Credit Agreement
Among the Company, its Subsidiary Borrowers and the banks
listed therein dated November 10, 1998 (incorporated by
reference to Exhibit 10.1 of the Company's Current Report
on Form 8-K filed December 11, 1998).
*4.10 -- Form of Depositary Agreement
*4.11 -- Form of Depositary Receipt
***5.1 -- Opinion of Vinson & Elkins L.L.P. as to the legality of
the securities being registered.
**12.1 -- Computation of Ratio of Earnings to Fixed Charges.
***23.1 -- Consent of Arthur Andersen LLP.
***23.2 -- Consent of Crowe, Chizek and Company LLP.
***23.3 -- Consent of Vinson & Elkins L.L.P. (see Exhibit 5.1).
***24.1 -- Powers of attorney (included in the signature page of
this Registration Statement).
****25.1 -- Form T-1 Statement of Eligibility of Trustee under the
Senior Indenture.
****25.2 -- Form T-1 Statement of Eligibility of Trustee under the
Subordinated Indenture.
</TABLE>
- ---------------
* To be filed as an exhibit to a Current Report on Form 8-K.
** Previously filed.
*** Filed herewith.
**** To be filed in accordance with the requirements of Section 305(b)(2) of the
Trust Indenture Act and Rule 5b-3 promulgated thereunder.
II-2
<PAGE> 34
ITEM 17. UNDERTAKINGS
(a) The registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the undertakings set forth in clauses (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports
filed with or furnished to the Securities and Exchange Commission by the
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The registrant hereby undertakes that:
(1) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of a registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this registration statement as of the time it was declared
effective.
(2) That, for purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(c) The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrants pursuant to the provisions set forth in Item 15, or
II-3
<PAGE> 35
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by a
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(e) The registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(6)(2) of the Act.
II-4
<PAGE> 36
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Group 1
Automotive, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
GROUP 1 AUTOMOTIVE, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
SENIOR VICE PRESIDENT,
CHIEF FINANCIAL OFFICER AND
TREASURER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman, President and Chief Executive
- ----------------------------------------------------- Officer and Director (Principal Executive
B.B. HOLLINGSWORTH, JR. Officer)
/s/ SCOTT L. THOMPSON Senior Vice President, Chief Financial
- ----------------------------------------------------- Officer and Treasurer (Chief Financial and
SCOTT L. THOMPSON Accounting Officer)
* Director
- -----------------------------------------------------
ROBERT E. HOWARD II
* Director
- -----------------------------------------------------
STERLING B. MCCALL, JR.
* Director
- -----------------------------------------------------
CHARLES M. SMITH
* Director
- -----------------------------------------------------
JOHN H. DUNCAN
* Director
- -----------------------------------------------------
BENNETT E. BIDWELL
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-5
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
SOUTHWEST TOYOTA, INC.
SMC LUXURY CARS, INC.
MCCALL AUTOMOTIVE GROUP, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and Director (Principal Executive
- ----------------------------------------------------- Officer)
STERLING B. MCCALL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L . THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-6
<PAGE> 38
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
COURTESY NISSAN, INC.
GROUP 1 FORD, INC.
SMITH AUTOMOTIVE GROUP, INC.
MIKE SMITH AUTOMOTIVE-H, INC.
MIKE SMITH AUTOMOTIVE-N, INC.
MIKE SMITH AUTOPLAZA, INC.
MIKE SMITH AUTOPLEX, INC.
MIKE SMITH AUTOPLEX BUICK, INC.
MIKE SMITH AUTOPLEX DODGE, INC.
MIKE SMITH AUTOPLEX-GERMAN IMPORTS,
INC.
MIKE SMITH AUTOPLEX-V, INC.
MIKE SMITH L/M, INC.
MIKE SMITH GM, INC.
ROUND ROCK NISSAN, INC.
SMITH, LIU & CORBIN, INC.
SMITH, LIU & KUTZ, INC.
TOWN NORTH IMPORTS, INC.
TOWN NORTH NISSAN, INC.
TOWN NORTH SUZUKI, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and Director (Principal Executive
- ----------------------------------------------------- Officer)
CHARLES M. SMITH
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L . THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-7
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
BOB HOWARD AUTOMOTIVE-A, INC.
BOB HOWARD AUTOMOTIVE-H, INC.
BOB HOWARD CHEVROLET, INC.
BOB HOWARD DODGE, INC.
BOB HOWARD MOTORS, INC.
BOB HOWARD NISSAN, INC.
HOWARD AUTOMOTIVE GROUP, INC.
HOWARD PONTIAC-GMC, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and President and Director
- ----------------------------------------------------- (Principal Executive Officer)
ROBERT E. HOWARD II
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L . THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
</TABLE>
II-8
<PAGE> 40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
FOYT MOTORS, INC.
KINGWOOD MOTORS-H, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and President and Director
- ----------------------------------------------------- (Principal Executive Officer)
ROBERT L . STRUZYNSKI
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
</TABLE>
II-9
<PAGE> 41
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
KOONS FORD, INC.
COURTESY FORD, INC.
PERIMETER FORD, INC.
FLAMINGO FORD, INC.
J. CARROLL MANAGEMENT GROUP, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and Director (Principal Executive
- ----------------------------------------------------- Officer)
JAMES S. CARROLL
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-10
<PAGE> 42
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
MMK INTERESTS, INC.
PRESTIGE CHRYSLER PLYMOUTH, INC.
MAXWELL CHRYSLER PLYMOUTH DODGE, INC.
HIGHLAND AUTOPLEX, INC.
MAXWELL TEXAS MANAGEMENT, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* President and Director (Principal Executive
- ----------------------------------------------------- Officer)
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-11
<PAGE> 43
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
PRESTIGE MAXWELL, INC.
MAXWELL HOLDINGS, INC.
By: /s/ ROBERT E. HOWARD II
------------------------------------
ROBERT H. HOWARD II
PRESIDENT AND SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ ROBERT E. HOWARD II President and Secretary (Principal Executive
- ----------------------------------------------------- Officer)
ROBERT E. HOWARD II
* Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
KARI L. JOHNSON
* Director
- -----------------------------------------------------
JAMES S. CARROLL
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-12
<PAGE> 44
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 25, 1999.
CASA CHRYSLER PLYMOUTH JEEP INC.
JOHNS AUTOMOTIVE GROUP, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and President and Director
- ----------------------------------------------------- (Principal Executive Officer)
KENNETH E. JOHNS
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-13
<PAGE> 45
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, McKinney Dodge,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 25, 1999.
MCKINNEY DODGE, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* President and Director (Principal Executive
- ----------------------------------------------------- Officer)
RONALD J. KUTZ
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-14
<PAGE> 46
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Casa Chevrolet
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 25, 1999.
CASA CHEVROLET INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and President and Director
- ----------------------------------------------------- (Principal Executive Officer)
CYNTHIA C. JOHNS
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-15
<PAGE> 47
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Luby Chevrolet
Co. certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 25, 1998.
LUBY CHEVROLET CO.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* President and Director (Principal Executive
- ----------------------------------------------------- Officer)
RICHARD FLEISCHMAN
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
*By: /s/ SCOTT L. THOMPSON
- -----------------------------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
</TABLE>
II-16
<PAGE> 48
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Prestige
Chrysler Plymouth Northwest, Ltd. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement or amendment to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houston, State of
Texas, on January 25, 1999.
PRESTIGE CHRYSLER PLYMOUTH
NORTHWEST, LTD.
By: MMK Interests, Inc.
General Partner
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and President and Director
- ----------------------------------------------------- (Principal Executive Officer)
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-17
<PAGE> 49
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Prestige
Chrysler Plymouth South, Ltd. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement or amendment to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houston, State of
Texas, on January 25, 1999.
PRESTIGE CHRYSLER PLYMOUTH SOUTH, LTD.
By: Prestige Chrysler Plymouth, Inc.
General Partner
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and President (Principal Executive
- ----------------------------------------------------- Officer)
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-18
<PAGE> 50
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Maxwell
Chrysler Plymouth Jeep Eagle, Ltd. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement or amendment to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houston, State of
Texas, on January 25, 1999.
MAXWELL CHRYSLER PLYMOUTH DODGE
JEEP EAGLE, LTD.
By: Maxwell Chrysler Plymouth Dodge,
Inc.
General Partner
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman and President and Director
- ----------------------------------------------------- (Principal Executive Officer)
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-19
<PAGE> 51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Maxwell Ford,
Ltd. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 25, 1999.
MAXWELL FORD, LTD.
By: Maxwell Texas Management, Inc.
General Partner
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 25th day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* President and Director (Principal Executive
- ----------------------------------------------------- Officer)
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
*By: /s/ SCOTT L. THOMPSON
-------------------------------
SCOTT L. THOMPSON
AS ATTORNEY-IN-FACT
II-20
<PAGE> 52
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Sunshine Buick
Pontiac GMC Truck, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
SUNSHINE BUICK PONTIAC GMC TRUCK, INC.
By: /s/ KENNETH E. JOHNS
------------------------------------
KENNETH E. JOHNS
PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ KENNETH E. JOHNS President and Director (Principal Executive
- ----------------------------------------------------- Officer)
KENNETH E. JOHNS
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-21
<PAGE> 53
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
LUBBOCK AUTOMOTIVE-M, INC.
LUBBOCK MOTORS, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ SCOTT L. THOMPSON President and Director (Principal Executive,
- ----------------------------------------------------- Chief Financial and Accounting Officer)
SCOTT L. THOMPSON
Director
- -----------------------------------------------------
GREG WESSELS
/s/ FRANK R. TODARO Secretary and Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-22
<PAGE> 54
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of Lubbock
Motors-F, Ltd., Lubbock Motors-T, Ltd., Rockwall Automotive-F, Ltd., Amarillo
Motors-C, Ltd., Amarillo Motors-J, Ltd., and Amarillo Motors-F, Ltd. certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement or
amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on January 21, 1999.
LUBBOCK MOTORS-F, LTD.
LUBBOCK MOTORS-T, LTD.
ROCKWALL AUTOMOTIVE-F, LTD.
AMARILLO MOTORS-C, LTD.
AMARILLO MOTORS-J, LTD.
AMARILLO MOTORS-F, LTD.
By: Lubbock Motors, Inc.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B.B. Hollingsworth, Jr. and Scott L. Thompson, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ SCOTT L. THOMPSON President and Director (Principal Executive,
- ----------------------------------------------------- Chief Financial and Accounting Officer)
SCOTT L. THOMPSON
Director
- -----------------------------------------------------
GREG WESSELS
/s/ FRANK R. TODARO Secretary and Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-23
<PAGE> 55
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of
Chapparal Dodge, Ltd. and Colonial Chrysler-Plymouth, Ltd. certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement or amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Houston, State of Texas, on January 21, 1999.
CHAPPARAL DODGE, LTD.
COLONIAL CHRYSLER-PLYMOUTH, LTD.
By: Kutz Auto Group, Inc.
By: /s/ RONALD J. KUTZ
------------------------------------
RONALD J. KUTZ
PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B.B. Hollingsworth, Jr. and Scott L. Thompson, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ RONALD J. KUTZ President and Director (Principal Executive
- ----------------------------------------------------- Officer)
RONALD J. KUTZ
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-24
<PAGE> 56
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Kutz Auto
Group, Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
KUTZ AUTO GROUP, INC.
By: /s/ RONALD J. KUTZ
------------------------------------
RONALD J. KUTZ
PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B.B. Hollingsworth, Jr. and Scott L. Thompson, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ RONALD J. KUTZ President and Director (Principal Executive
- ----------------------------------------------------- Officer)
RONALD J. KUTZ
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-25
<PAGE> 57
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
MIKE SMITH AUTOPLEX-A, INC.
MIKE SMITH MOTORS, INC.
MIKE SMITH IMPORTS, INC.
By: /s/ CHARLES M. SMITH
------------------------------------
CHARLES M. SMITH
CHAIRMAN
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ CHARLES M. SMITH Chairman and Director (Principal Executive
- ----------------------------------------------------- Officer)
CHARLES M. SMITH
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-26
<PAGE> 58
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
GROUP 1 HOLDINGS-T, INC.
GROUP 1 HOLDINGS-GM, INC.
By: /s/ THOMAS NYLE MAXWELL, JR.
------------------------------------
THOMAS NYLE MAXWELL, JR.
PRESIDENT AND SECRETARY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ THOMAS NYLE MAXWELL, JR. President and Secretary and Director
- ----------------------------------------------------- (Principal Executive Officer)
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-27
<PAGE> 59
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bob Howard
Automotive-East, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
BOB HOWARD AUTOMOTIVE-EAST, INC.
By: /s/ ROBERT E. HOWARD II
------------------------------------
ROBERT E. HOWARD II
CHAIRMAN AND PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ ROBERT E. HOWARD II Chairman and President and Director
- ----------------------------------------------------- (Principal Executive Officer)
ROBERT E. HOWARD II
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-28
<PAGE> 60
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, GPI Atlanta,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 21, 1999.
GPI ATLANTA, INC.
By: /s/ JOHN T. TURNER
------------------------------------
JOHN T. TURNER
PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JOHN T. TURNER President and Director (Principal Executive
- ----------------------------------------------------- Officer)
JOHN T. TURNER
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-29
<PAGE> 61
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Delaware
Acquisition-CC, L.L.C. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
DELAWARE ACQUISITION-CC, L.L.C.
By: Prestige Maxwell, Inc., Sole
Member
By: /s/ ROBERT E. HOWARD II
------------------------------------
PRESIDENT AND SECRETARY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ ROBERT E. HOWARD II President and Secretary and Director
- ----------------------------------------------------- (Principal Executive Officer)
ROBERT E. HOWARD II
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-30
<PAGE> 62
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Delaware
Acquisition-F, L.L.C. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
DELAWARE ACQUISITION-F, L.L.C.
By: Maxwell Holdings, Inc., Sole
Member
By: /s/ ROBERT E. HOWARD II
------------------------------------
ROBERT E. HOWARD II
PRESIDENT AND SECRETARY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ ROBERT E. HOWARD II President and Secretary and Director
- ----------------------------------------------------- (Principal Executive Officer)
ROBERT E. HOWARD II
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-31
<PAGE> 63
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Delaware
Acquisition-T, L.L.C. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
DELAWARE ACQUISITION-T, L.L.C.
By: Group 1 Holdings-T, Inc., Sole
Member
By: /s/ THOMAS NYLE MAXWELL, JR.
------------------------------------
THOMAS NYLE MAXWELL, JR.
PRESIDENT AND SECRETARY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B.B. Hollingsworth, Jr. and Scott L. Thompson, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ THOMAS NYLE MAXWELL, JR. President and Secretary and Director
- ----------------------------------------------------- (Principal Executive Officer)
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-32
<PAGE> 64
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Delaware
Acquisition-GM, L.L.C. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 21, 1999.
DELAWARE ACQUISITION-GM, L.L.C.
By: Group 1 Holdings-GM, Inc., Sole
Member
By: /s/ THOMAS NYLE MAXWELL, JR.
------------------------------------
THOMAS NYLE MAXWELL, JR.
PRESIDENT AND SECRETARY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ THOMAS NYLE MAXWELL, JR. President and Secretary and Director
- ----------------------------------------------------- (Principal Executive Officer)
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-33
<PAGE> 65
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Group 1 Realty,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 21, 1999.
GROUP 1 REALTY, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints B. B. Hollingsworth, Jr. and Scott L. Thompson,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any additional registration statement
pursuant to Rule 462(b), and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent fully power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 21st day of January, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ SCOTT L. THOMPSON President and Director (Principal Executive,
- ----------------------------------------------------- Chief Financial and Accounting Officer)
SCOTT L. THOMPSON
/s/ FRANK R. TODARO Director
- -----------------------------------------------------
FRANK R. TODARO
</TABLE>
II-34
<PAGE> 66
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
*1.1 -- Form of Underwriting Agreement (Debt Securities).
*1.2 -- Form of Underwriting Agreement (Preferred Stock).
*1.3 -- Form of Underwriting Agreement (Common Stock).
4.1 -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-29893)).
4.2 -- Bylaws of the Company (incorporated by reference to
Exhibit 3.3 to the Company's Registration Statement on
Form S-1 (Registration No. 333-29893)).
4.3 -- Certificate of Designation of Series A Junior
Participating Preferred Stock (incorporated by reference
to Exhibit 3.2 of the Company's Registration Statement on
Form S-1 (Registration No. 333-29893)).
***4.4 -- Form of Senior Indenture.
***4.5 -- Form of Subordinated Indenture.
***4.6 -- Form of Senior Debt Securities (Included in Exhibit 4.4).
***4.7 -- Form of Subordinated Debt Securities (Included in Exhibit
4.5).
4.8 -- Rights Agreement between the Company and ChaseMellon
Shareholders Services, L.L.C., as rights agent dated
October 3, 1997 (incorporated by reference to Exhibit
10.10 of the Company's Registration Statement on Form S-1
(Registration No. 333-29893)).
4.9 -- Second Amended and Restated Revolving Credit Agreement
Among the Company, its Subsidiary Borrowers and the banks
listed therein dated November 10, 1998 (incorporated by
reference to Exhibit 10.1 of the Company's Current Report
on Form 8-K dated November 10, 1998).
*4.10 -- Form of Depositary Agreement
*4.11 -- Form of Depositary Receipt
***5.1 -- Opinion of Vinson & Elkins L.L.P. as to the legality of
the securities being registered.
**12.1 -- Computation of Ratio of Earnings to Fixed Charges.
***23.1 -- Consent of Arthur Andersen LLP.
***23.2 -- Consent of Crowe, Chizek and Company LLP.
***23.3 -- Consent of Vinson & Elkins L.L.P. (see Exhibit 5.1).
***24.1 -- Powers of attorney (included in the signature page of
this Registration Statement).
****25.1 -- Form T-1 Statement of Eligibility of Trustee under the
Senior Indenture.
****25.2 -- Form T-1 Statement of Eligibility of Trustee under the
Subordinated Indenture.
</TABLE>
- ---------------
* To be filed as an exhibit to a Current Report on Form 8-K.
** Previously filed.
*** Filed herewith.
**** To be filed in accordance with the requirements of Section 305(b)(2) of the
Trust Indenture Act and Rule 5b-3 promulgated thereunder.
<PAGE> 1
EXHIBIT 4.4
===============================================================================
Group 1 Automotive, Inc.,
as Issuer
and
The Subsidiary Guarantors named herein,
as Subsidiary Guarantors
TO
---------------------------------------------------------
Trustee
--------------
SENIOR INDENTURE
Dated as of __________, ____
--------------
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
----------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
PARTIES.................................................................................... 1
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS...................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act..................................................................... 2
Affiliate; control...................................................... 2
Authenticating Agent.................................................... 2
Board of Directors...................................................... 2
Board Resolution........................................................ 2
Business Day............................................................ 2
Commission.............................................................. 2
Company................................................................. 2
Company Request......................................................... 3
Company Order........................................................... 3
Corporate Trust Office.................................................. 3
corporation............................................................. 3
Covenant Defeasance..................................................... 3
Defaulted Interest...................................................... 3
Defeasance.............................................................. 3
Depositary.............................................................. 3
Event of Default........................................................ 3
Exchange Act............................................................ 3
Expiration Date......................................................... 3
Global Security......................................................... 3
Holder.................................................................. 3
Indenture............................................................... 3
interest................................................................ 3
Interest Payment Date................................................... 4
Investment Company Act.................................................. 4
Maturity................................................................ 4
Notice of Default....................................................... 4
Officers' Certificate................................................... 4
Opinion of Counsel...................................................... 4
Original Issue Discount Security........................................ 4
Outstanding............................................................. 4
</TABLE>
- --------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Paying Agent............................................................ 5
Person.................................................................. 5
Place of Payment........................................................ 5
Predecessor Security.................................................... 5
Redemption Date......................................................... 5
Redemption Price........................................................ 6
Regular Record Date..................................................... 6
Securities.............................................................. 6
Securities Act.......................................................... 6
Security Register and Security Registrar................................ 6
Special Record Date..................................................... 6
Stated Maturity......................................................... 6
Subsidiary.............................................................. 6
Trust Indenture Act..................................................... 6
Trustee................................................................. 6
U.S. Government Obligation.............................................. 7
Vice President.......................................................... 7
SECTION 102. Compliance Certificates and Opinions.................................... 7
SECTION 103. Form of Documents Delivered to Trustee.................................. 7
SECTION 104. Acts of Holders; Record Dates........................................... 8
SECTION 105. Notices, Etc., to Trustee and Company................................... 10
SECTION 106. Notice to Holders; Waiver............................................... 10
SECTION 107. Conflict with Trust Indenture Act....................................... 11
SECTION 108. Effect of Headings and Table of Contents................................ 11
SECTION 109. Successors and Assigns.................................................. 11
SECTION 110. Separability Clause..................................................... 11
SECTION 111. Benefits of Indenture................................................... 11
SECTION 112. Governing Law........................................................... 11
SECTION 113. Legal Holidays.......................................................... 11
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally......................................................... 12
SECTION 202. Form of Face of Security................................................ 12
SECTION 203. Form of Reverse of Security............................................. 14
SECTION 204. Form of Subsidiary Guarantee............................................ 18
SECTION 205. Form of Legend for Global Securities.................................... 20
SECTION 206. Form of Trustee's Certificate of Authentication......................... 21
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.................................... 21
SECTION 302. Denominations........................................................... 24
SECTION 303. Execution, Authentication, Delivery and Dating.......................... 24
SECTION 304. Temporary Securities.................................................... 25
SECTION 305. Registration, Registration of Transfer and Exchange..................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 27
SECTION 307. Payment of Interest; Interest Rights Preserved.......................... 28
SECTION 308. Persons Deemed Owners................................................... 29
SECTION 309. Cancellation............................................................ 29
SECTION 310. Computation of Interest................................................. 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................................. 30
SECTION 402. Application of Trust Money.............................................. 31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default....................................................... 31
SECTION 502. Acceleration of Maturity; Rescission and Annulment...................... 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................................... 34
SECTION 504. Trustee May File Proofs of Claim........................................ 35
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities....................................................... 35
SECTION 506. Application of Money Collected.......................................... 35
SECTION 507. Limitation on Suits..................................................... 36
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................ 36
SECTION 509. Restoration of Rights and Remedies...................................... 37
SECTION 510. Rights and Remedies Cumulative.......................................... 37
SECTION 511. Delay or Omission Not Waiver............................................ 37
SECTION 512. Control by Holders...................................................... 37
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 513. Waiver of Past Defaults................................................. 38
SECTION 514. Undertaking for Costs................................................... 38
SECTION 515. Waiver of Usury, Stay or Extension Laws................................. 38
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..................................... 39
SECTION 602. Notice of Defaults...................................................... 39
SECTION 603. Certain Rights of Trustee............................................... 39
SECTION 604. Not Responsible for Recitals or Issuance of Securities.................. 40
SECTION 605. May Hold Securities..................................................... 40
SECTION 606. Money Held in Trust..................................................... 41
SECTION 607. Compensation and Reimbursement.......................................... 41
SECTION 608. Conflicting Interests................................................... 41
SECTION 609. Corporate Trustee Required; Eligibility................................. 41
SECTION 610. Resignation and Removal; Appointment of Successor....................... 42
SECTION 611. Acceptance of Appointment by Successor.................................. 43
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business......................................................... 44
SECTION 613. Preferential Collection of Claims Against Company....................... 47
SECTION 614. Appointment of Authenticating Agent..................................... 47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders.......................................................... 46
SECTION 702. Preservation of Information; Communications
to Holders.......................................................... 46
SECTION 703. Reports by Trustee...................................................... 47
SECTION 704. Reports by Company...................................................... 47
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms....................................................... 47
SECTION 802. Subsidiary Guarantors May Consolidate, Etc.,
Only on Certain Terms............................................... 48
SECTION 803. Successor Substituted................................................... 49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...................... 49
SECTION 902. Supplemental Indentures with Consent of Holders......................... 50
SECTION 903. Execution of Supplemental Indentures.................................... 51
SECTION 904. Effect of Supplemental Indentures....................................... 52
SECTION 905. Conformity with Trust Indenture Act..................................... 52
SECTION 906. Reference in Securities to Supplemental Indentures...................... 52
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.............................. 52
SECTION 1002. Maintenance of Office or Agency......................................... 52
SECTION 1003. Money for Securities Payments to Be Held in Trust....................... 53
SECTION 1004. Statement by Officers as to Default..................................... 54
SECTION 1005. Existence............................................................... 54
SECTION 1006. Maintenance of Properties............................................... 55
SECTION 1007. Payment of Taxes and Other Claims....................................... 55
SECTION 1008. Maintenance of Insurance................................................ 55
SECTION 1009. Waiver of Certain Covenants............................................. 55
</TABLE>
-v-
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................................ 56
SECTION 1102. Election to Redeem; Notice to Trustee................................... 56
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....................... 56
SECTION 1104. Notice of Redemption.................................................... 57
SECTION 1105. Deposit of Redemption Price............................................. 58
SECTION 1106. Securities Payable on Redemption Date................................... 58
SECTION 1107. Securities Redeemed in Part............................................. 58
ARTICLE TWELVE
[Intentionally Deleted]
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEE
SECTION 1301. Applicability of Article................................................ 65
SECTION 1302. Subsidiary Guarantee.................................................... 65
SECTION 1303. Execution and Delivery of Subsidiary Guarantees......................... 67
SECTION 1304. Release of Subsidiary Guarantors........................................ 67
SECTION 1305. Additional Subsidiary Guarantors........................................ 68
</TABLE>
-vi-
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE FOURTEEN
[Intentionally Deleted]
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or
Covenant Defeasance................................................. 68
SECTION 1502. Defeasance and Discharge................................................ 68
SECTION 1503. Covenant Defeasance..................................................... 69
PSECTION 1504. Conditions to Defeasance or Covenant Defeasance......................... 69
SECTION 1505. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions....................... 71
SECTION 1506. Reinstatement........................................................... 72
ARTICLE SIXTEEN
SINKING FUNDS
SECTION 1601. Applicability of Article................................................ 73
SECTION 1602. Satisfaction of Sinking Fund Payments with Securities................... 73
SECTION 1603. Redemption of Securities for Sinking Fund............................... 73
TESTIMONIUM................................................................................ 74
SIGNATURES AND SEALS....................................................................... 74
ACKNOWLEDGEMENTS........................................................................... 75
SCHEDULE I................................................................................. I-1
</TABLE>
-vii-
<PAGE> 9
GROUP 1 AUTOMOTIVE, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C> <C>
Sections 310(a)(1) ........................................................ 609
(a)(2) ........................................................ 609
(a)(3) ........................................................ Not Applicable
(a)(4) ........................................................ Not Applicable
(b) ........................................................ 608
610
Sections 311(a) ........................................................ 613
(b) ........................................................ 613
Sections 312(a) ........................................................ 701
702
(b) ........................................................ 702
(c) ........................................................ 702
Sections 313(a) ........................................................ 703
(b) ........................................................ 703
(c) ........................................................ 703
(d) ........................................................ 703
Sections 314(a) ........................................................ 704
(a)(4) ........................................................ 101
1004
(b) ........................................................ Not Applicable
(c)(1) ........................................................ 102
(c)(2) ........................................................ 102
(c)(3) ........................................................ Not Applicable
(d) ........................................................ Not Applicable
(e) ........................................................ 102
Sections 315(a) ........................................................ 601
(b) ........................................................ 602
(c) ........................................................ 601
(d) ........................................................ 601
(e) ........................................................ 514
Sections 316(a) ........................................................ 101
(a)(1)(A) ........................................................ 502
512
(a)(1)(B) ........................................................ 513
(a)(2) ........................................................ Not Applicable
(b) ........................................................ 508
(c) ........................................................ 104
Sections 317(a)(1) ........................................................ 503
(a)(2) ........................................................ 504
(b) ........................................................ 1003
Sections 318(a) ........................................................ 107
</TABLE>
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 10
INDENTURE, dated as of _____________, 1999, among Group 1
Automotive, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 950 Echo Lane, Houston, Texas, each of the Subsidiary Guarantors (as
hereinafter defined) and .............................., a
........................... duly organized and existing under the laws of
........, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
The Company and the Subsidiary Guarantors are members of the same
consolidated group of companies. The Subsidiary Guarantors will derive direct
and indirect economic benefit from the issuance of the Securities. Accordingly,
each Subsidiary Guarantor has duly authorized the execution and delivery of
this Indenture to provide for its full, unconditional and joint and several
guarantee of the Securities to the extent provided in or pursuant this
Indenture.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE> 11
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
this instrument;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the
case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing; provided that direct or indirect beneficial ownership of 10% or more
of the Voting Stock of a Person shall be deemed to control.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means, with respect to the Company, either
the board of directors of the Company or any committee of that board duly
authorized to act for it in respect hereof, and with respect to any Subsidiary
Guarantor, either the board of directors of such Subsidiary Guarantor or any
committee of that board duly authorized to act for it in respect hereof.
"Board Resolution" means, with respect to the Company or a
Subsidiary Guarantor, a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or such Subsidiary Guarantor, as the case
may be, to have been duly adopted by its Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general
or limited, of such Person.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
-2-
<PAGE> 12
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in ................................................................ at which at
any particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1503.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1502.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of
the Securities of any series and bears the legend set forth in Section 205 (or
such legend as may be specified as contemplated by Section 301 for such
Securities).
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
-3-
<PAGE> 13
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company or a Subsidiary Guarantor, as the case may be, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means, as to the Company or a Subsidiary
Guarantor, a written opinion of counsel, who may be counsel for the Company or
such Subsidiary Guarantor, as the case may be, and who shall be acceptable to
the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1502; and
-4-
<PAGE> 14
(4) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount
of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company, any Subsidiary Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, any Subsidiary Guarantor or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or
other action, only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company, a Subsidiary Guarantor or any other
obligor upon the Securities or any Affiliate of the Company, a Subsidiary
Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
-5-
<PAGE> 15
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means, at any date of determination, any
Subsidiary that represents 10% or more of the Company's total assets at the end
of the most recent fiscal quarter for which financial information is available
or 10% or more of the Company's consolidated net revenues or consolidated
operating income for the most recent four quarters for which financial
information is available.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" of any Person means (1) a corporation more than 50%
of the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (2) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Subsidiary Guarantees" means the guarantees of each Subsidiary
Guarantor as provided in Article Thirteen.
"Subsidiary Guarantors" means (i) the subsidiaries listed in
Schedule I hereto; (ii) any successor of the foregoing; and (iii) each other
Subsidiary of the Company that becomes a Subsidiary Guarantor in accordance
with Section 1305 hereof; in each case (i), (ii) and (iii) until such
Subsidiary Guarantor ceases to be such in accordance with Section 1304 hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of
-6-
<PAGE> 16
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"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 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Subsidiary
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company and/or such Subsidiary Guarantor, as appropriate, shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company
or a Subsidiary Guarantor, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
-7-
<PAGE> 17
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a
Subsidiary Guarantor may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate
or opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company or such Subsidiary Guarantor stating that the information with
respect to such factual matters is in the possession of the Company or such
Subsidiary Guarantor, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
-8-
<PAGE> 18
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of
-9-
<PAGE> 19
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company's expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto
in writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 106, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing,
no Expiration Date shall be later than the 180th day after the applicable
record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: ................., or
(2) the Company or any Subsidiary Guarantor by the
Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, in the case of the Company
addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company and, in
the case of any Subsidiary Guarantor, to it at the address of the
Company's principal office specified in the first paragraph of this
instrument, Attention _____________, or at any other address
previously furnished in writing to the Trustee by such Subsidiary
Guarantor.
-10-
<PAGE> 20
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and
any Subsidiary Guarantor shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture, the Securities or the
Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
-11-
<PAGE> 21
SECTION 111. Benefits of Indenture.
Nothing in this Indenture, the Securities or the Subsidiary
Guarantees, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and the Subsidiary Guarantees shall
be governed by and construed in accordance with the law of the State of New
York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
purchase date or Stated Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date or purchase date, or at the Stated
Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and, if applicable, the Subsidiary
Guarantees to be endorsed thereon shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities or Subsidiary Guarantees,
as the case may be, as evidenced by their execution thereof. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities.
-12-
<PAGE> 22
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
Group 1 Automotive, Inc.
------------------------------------------------
No. $
--------- ---------
Group 1 Automotive, Inc. a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ....................................., or
registered assigns, the principal sum of ......................................
Dollars on ........................................................ [if the
Security is to bear interest prior to Maturity, insert -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on
............ and ............ in each year, commencing ........., at the rate
of ....% per annum, until the principal hereof is paid or made available for
payment, provided that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of ...% per annum
(to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ....... or
....... (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are
due until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the
rate of ......%
-13-
<PAGE> 23
per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be
payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in ............, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
Group 1 Automotive, Inc.
By
-------------------------------------
Attest:
- --------------------------------
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of ____________, 1999 (herein called
the "Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company, the Subsidiary Guarantors named therein and
..................., as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Subsidiary
Guarantors, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert -- , limited in aggregate principal amount to $...........].
-14-
<PAGE> 24
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert -- (1) on ........... in any year commencing with the year
...... and ending with the year ...... through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount,
and (2)] at any time [if applicable, insert -- on or after .........., 19__],
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [if applicable, insert -- on or before ..............., ...%, and if
redeemed] during the 12-month period beginning ............. of the years
indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
............ in any year commencing with the year .... and ending with the year
.... through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [if applicable, insert -- on or after ............], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ............ of the years indicated,
-15-
<PAGE> 25
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to ............., redeem any Securities of this series
as contemplated by [if applicable, insert -- Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series
provides for the redemption on ............ in each year beginning with the
year ....... and ending with the year ...... of [if applicable, insert -- not
less than $.......... ("mandatory sinking fund") and not more than] $.........
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [if
applicable, insert -- mandatory] sinking fund payments may be credited against
subsequent [if applicable, insert -- mandatory] sinking fund payments otherwise
required to be made [if applicable, insert -- , in the inverse order in which
they become due].]
[If the Security is subject to redemption of any kind, insert --
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- As provided in the Indenture and subject
to certain limitations therein set forth, the obligations of the Company under
this Security are guaranteed pursuant to the Subsidiary Guarantees endorsed
hereon. The Indenture provides that a Subsidiary Guarantor shall be released
from its Subsidiary Guarantee upon compliance with certain conditions.]
[If applicable, insert -- The Indenture contains provisions for
Defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with
-16-
<PAGE> 26
respect to this Security] [, in each case] upon compliance with certain
conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
-17-
<PAGE> 27
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Subsidiary Guarantee.
SUBSIDIARY GUARANTEE
For value received, each of the Subsidiary Guarantors named (or
deemed herein to be named) below hereby jointly and severally fully and
unconditionally guarantees to the Holder of the Security upon which this
Subsidiary Guarantee is endorsed, and to the Trustee on behalf of such Holder,
the due and punctual payment of the principal of (and premium, if any) and
interest on such Security when and as the same shall become due and payable,
whether at the Stated Maturity, by acceleration, call for redemption, offer to
purchase or otherwise, according to the terms thereof and of the Indenture
referred to therein and to cover all the rights of the Trustee under Section
607. In case of the failure of the Company punctually to make any such payment,
each of the Subsidiary Guarantors hereby jointly and severally agrees to cause
such payment to be made punctually when and as the same shall become due and
payable, whether at the Stated Maturity or by acceleration, call for
redemption, offer to purchase or otherwise, and as if such payment were made by
the Company.
Each of the Subsidiary Guarantors hereby jointly and severally
agrees that its obligations hereunder shall be absolute and unconditional,
irrespective of, and shall be unaffected by, the validity, regularity or
enforceability of such Security or the Indenture, the absence of any action to
enforce the
-18-
<PAGE> 28
same or any release, amendment, waiver or indulgence granted to the Company or
any other guarantor, or any consent to departure from any requirement of any
other guarantee of all or of any of the Securities of this series, or any other
circumstances which might otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor; provided, however, that, notwithstanding
the foregoing, no such release, amendment, waiver or indulgence shall, without
the consent of such Subsidiary Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or alter the Stated Maturity
thereof. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other lien on any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral, 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 or notice
with respect to such Security or the indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Subsidiary Guarantee will not be
discharged except by complete performance of the obligations contained in such
Security and in this Subsidiary Guarantee. Each Subsidiary Guarantor agrees
that if, after the occurrence and during the continuance of an Event of Default
with respect to Securities of this series, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities of this series, to collect interest
on the Securities of this series, or to enforce or exercise any other right or
remedy with respect to the Securities of this series, such Subsidiary Guarantor
agrees to pay to the Trustee for the account of the Holders, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the
Holders.
No reference herein to the Indenture and no provision of this
Subsidiary Guarantee or of the Indenture shall alter or impair the Subsidiary
Guarantee of any Subsidiary Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal (and premium, if any) and
interest on the Security upon which this Subsidiary Guarantee is endorsed.
Each Subsidiary Guarantor shall be subrogated to all rights of the
Holder of this Security against the Company in respect of any amounts paid by
such Subsidiary Guarantor on account of this Security pursuant to the
provisions of its Subsidiary Guarantee or the Indenture; provided, however,
that such Subsidiary Guarantor shall not be entitled to enforce or to receive
any payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any) and interest on this Security and all other
Securities of this series issued under the Indenture shall have been paid in
full.
This Subsidiary Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company for liquidation or reorganization, should the Company become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities of
this series is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any Holder of the Securities of this
series, whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities of this series shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
-19-
<PAGE> 29
The Subsidiary Guarantors or any particular Subsidiary Guarantor
shall be released from this Subsidiary Guarantee upon the terms and subject to
certain conditions provided in the Indenture.
By delivery of a Supplemental Indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of first issuance of the Securities of this
series will be deemed to have executed and delivered this Subsidiary Guarantee
for the benefit of the Holder of the Security upon which this Subsidiary
Guarantee is endorsed with the same effect as if such Subsidiary Guarantor was
named below and has executed and delivered this Subsidiary Guarantee.
All terms used in this Subsidiary Guarantee which are defined in
the Indenture referred to in the Security upon which this Subsidiary Guarantee
is endorsed shall have the meanings assigned to them in such Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Subsidiary Guarantee is endorsed shall have been executed by the Trustee under
the Indenture by manual signature.
Reference is made to the Indenture for further provisions with
respect to this Subsidiary Guarantee.
This Subsidiary Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused
this Subsidiary Guarantee to be duly executed.
[Insert Names of Subsidiary Guarantors]
By
---------------------------------
Title:
Attest:
- -------------------------
SECTION 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF.
-20-
<PAGE> 30
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 206. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-----------------------------
As Trustee
By
---------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) if the Securities of the series will not have the benefit of
the Subsidiary Guarantees of the Subsidiary Guarantors;
(3) [INTENTIONALLY DELETED];
(4) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
-21-
<PAGE> 31
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(5) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(6) the date or dates on which the principal of any Securities of
the series is payable;
(7) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any such interest
payable on any Interest Payment Date;
(8) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(9) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be
evidenced;
(10) the obligation, if any, of the Company to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(12) if the amount of principal of or any premium or interest on
any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(13) if other than the currency of the United States of America,
the currency, currencies or currency units in which the principal of
or any premium or interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including
for purposes of the definition of "Outstanding" in Section 101;
(14) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and
-22-
<PAGE> 32
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);
(15) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(16) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(17) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 1502 or
Section 1503 or both such Sections and, if other than by a Board
Resolution, the manner in which any election by the Company to defease
such Securities shall be evidenced;
(18) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositories for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that
set forth in Section 205 and any circumstances in addition to or in
lieu of those set forth in Clause (2) of the last paragraph of Section
305 in which any such Global Security may be exchanged in whole or in
part for Securities registered, and any transfer of such Global
Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a
nominee thereof;
(19) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(20) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section 303)
set forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant
-23-
<PAGE> 33
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the series.
The Securities of each series shall have the benefit of the
Subsidiary Guarantees unless the Company elects otherwise upon the
establishment of a series pursuant to this Section 301.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered
form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company and, if applicable, having endorsed thereon the Subsidiary
Guarantees executed as provided in Section 1303 by the Subsidiary Guarantors to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
-24-
<PAGE> 34
constitute valid and legally binding obligations of the Company, and,
if applicable, the Subsidiary Guarantees endorsed thereon will
constitute valid and legally binding obligations of the Subsidiary
Guarantors, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Subsidiary Guarantee shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities and, if applicable,
having endorsed thereon the Subsidiary Guarantees in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities and, if applicable,
Subsidiary Guarantees may determine, as evidenced by their execution of such
Securities and Subsidiary Guarantees.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for
-25-
<PAGE> 35
cancellation of any one or more temporary Securities of any series, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount and,
if applicable, having endorsed thereon Subsidiary Guarantees executed by the
Subsidiary Guarantors. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the Subsidiary Guarantees endorsed thereon and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, if
applicable the Subsidiary Guarantors shall execute the Subsidiary Guarantees
endorsed thereon and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities and, if applicable, the Subsidiary Guarantees
endorsed thereon issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and, if applicable,
the respective Subsidiary Guarantors, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities and Subsidiaries
Guarantees surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
-26-
<PAGE> 36
If the Securities of any series (or of any series and specified
tenor) are to be redeemed in part, the Company shall not be required (A) to
issue, register the transfer of or exchange any Securities of that series (or
of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing, or
(B) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (C) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 304,
306, 906 or 1107 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such
Global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute, if applicable the Subsidiary Guarantors shall execute
the Subsidiary Guarantees endorsed thereon and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to
-27-
<PAGE> 37
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the Subsidiary Guarantees endorsed thereon and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security, and, if applicable, the
Subsidiary Guarantees endorsed thereon, shall constitute an original additional
contractual obligation of the Company and, if applicable, the respective
Subsidiary Guarantors, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the
-28-
<PAGE> 38
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities of such
series in the manner set forth in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors, or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
any Subsidiary Guarantor, the Trustee nor any agent of the Company, any
Subsidiary Guarantor, or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, purchase,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
-29-
<PAGE> 39
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company or, if applicable, a Subsidiary Guarantor, in the
case of (i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose
-30-
<PAGE> 40
money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company or a Subsidiary Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company and the
Subsidiary Guarantors; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of Clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on
any Security of that series at its Maturity; or
-31-
<PAGE> 41
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under the terms of any instrument evidencing or
securing any Debt of the Company or any Subsidiary having an
outstanding principal amount of $10 million individually or in the
aggregate which default results in the acceleration of the payment of
all or any portion of such Debt (which acceleration is not rescinded
within a period of 10 days of the occurrence of such acceleration) or
constitutes the failure to pay all or any portion of the principal
amount of such Debt when due; or
(6) the rendering of a final judgment or judgments (not subject to
appeal) against the Company or any Subsidiary in an amount in excess
of $10 million which remains undischarged or unstayed for a period of
60 days after the date on which the right to appeal has expired;
(7) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company, any
Significant Subsidiary or any group of Subsidiaries that together
would constitute a Significant Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company, any Significant Subsidiary or any group
of Subsidiaries that together would constitute a Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, any Significant
Subsidiary or any group of Subsidiaries that together would constitute
a Significant Subsidiary under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, any Significant
Subsidiary or any group of Subsidiaries that together would constitute
a Significant Subsidiary or of any substantial part of its or their
property, or ordering the winding up or liquidation of its or their
affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(8) the commencement by the Company, any Significant Subsidiary or
any group of Subsidiaries that together would constitute a Significant
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it or them to the entry of a
decree or order for relief in respect of the Company, any Significant
Subsidiary or any group of Subsidiaries that together would constitute
a Significant Subsidiary in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it or them, or the filing by it
or them of a petition or answer or consent seeking reorganization or
-32-
<PAGE> 42
relief under any applicable Federal or State law, or the consent by it
or them to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company, any
Significant Subsidiary or any group of Subsidiaries that together
would constitute a Significant Subsidiary or of any substantial part
of its or their property, or the making by it or them of an assignment
for the benefit of creditors, or the admission by it or them in
writing of its or their inability to pay its or their debts generally
as they become due, or the taking of corporate action by the Company,
any Significant Subsidiary or any group of Subsidiaries that together
would constitute a Significant Subsidiary in furtherance of any such
action; or
(9) In the event the Subsidiary Guarantors have issued Subsidiary
Guarantees with respect to the Securities of such series, the
Subsidiary Guarantee of any Subsidiary Guarantor is held by a final
non-appealable order or judgment of a court of competent jurisdiction
to be unenforceable or invalid or ceases for any reason to be in full
force and effect (other than in accordance with the terms of this
Indenture) or any Subsidiary Guarantor or any Person acting on behalf
of any Subsidiary Guarantor denies or disaffirms such Subsidiary
Guarantor's obligations under its Subsidiary Guarantee (other than by
reason of a release of such Subsidiary Guarantor from its Subsidiary
Guarantee in accordance with the terms of this Indenture); or
(10) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 501(7) or 501(8)) with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(7) or 501 (8) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
-33-
<PAGE> 43
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company or, if applicable, any Subsidiary Guarantor has
paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of
-34-
<PAGE> 44
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, any
Subsidiary Guarantor or any other obligor upon the Securities, or the property
or creditors of the Company, any Subsidiary Guarantor or any other obligor upon
the Securities, the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or any Subsidiary Guarantee or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities or any Subsidiary Guarantee may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
-35-
<PAGE> 45
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all of
such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section
307) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption or offer by the Company to
purchase the Securities pursuant to the terms of this Indenture, on the
Redemption Date or purchase date, as applicable) and
-36-
<PAGE> 46
to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
-37-
<PAGE> 47
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series (including any Security which is
required to have been purchased by the Company pursuant to an offer to
purchase by the Company made pursuant to the terms of this Indenture),
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or any Subsidiary Guarantor.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Subsidiary Guarantors covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and each of the Company and the 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 will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
-38-
<PAGE> 48
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified
in Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, and
any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
-39-
<PAGE> 49
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and the
Subsidiary Guarantees, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company or the Subsidiary Guarantors,
as the case may be, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Subsidiary Guarantees endorsed thereon. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or any Subsidiary
Guarantor, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company and any Subsidiary Guarantor with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
-40-
<PAGE> 50
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company or any Subsidiary Guarantor, as the
case may be.
SECTION 607. Compensation and Reimbursement.
The Company and each Subsidiary Guarantor jointly and severally
agree
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder
with respect to the Securities of each series, which may be Trustee hereunder
for Securities of one or more other series. Each Trustee shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such, and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and
-41-
<PAGE> 51
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there
-42-
<PAGE> 52
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, the Subsidiary Guarantors and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Subsidiary Guarantors, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing
-43-
<PAGE> 53
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the
Subsidiary Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as
the case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company and Subsidiary
Guarantors.
If and when the Trustee shall be or become a creditor of the
Company, any Subsidiary Guarantor or any other obligor upon the Securities, the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Company, such Subsidiary Guarantor or any
such other obligor.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of
-44-
<PAGE> 54
such series issued upon original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
-45-
<PAGE> 55
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
,
----------------------------------
As Trustee
By ,
--------------------------------
As Authenticating Agent
By ,
--------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than ............... and
................... in each year, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of
Securities of each series as of the preceding .............. or
.............., as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
-46-
<PAGE> 56
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, the
Subsidiary Guarantors nor the Trustee nor any agent of any of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company and with the
Subsidiary Guarantors. The Company will notify the Trustee when any Securities
are listed on any stock exchange.
SECTION 704. Reports by Company and Subsidiary Guarantors.
The Company and each of the Subsidiary Guarantors shall file with
the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge into any other Person or permit
any other Person to consolidate with or merge into the Company or, directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its assets, unless:
(1) in a transaction in which the Company does not survive or in
which the Company transfers, conveys, sells, leases or otherwise
disposes of all or substantially all of its assets, the successor
entity (for purposes of this Article Eight, a "Successor Company")
shall be a corporation, partnership, trust or other entity organized
-47-
<PAGE> 57
and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supple mental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on
all the Securities and the performance or observance of every covenant
of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company
or any Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby;
(4) any other conditions provided pursuant to Section 301 with
respect to the Securities of a series are satisfied; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain
Terms.
Except in a transaction resulting in the release of a Subsidiary
Guarantor in accordance with the terms of this Indenture, each Subsidiary
Guarantor shall not, and the Company shall not permit any Subsidiary Guarantor
to, in a single or a series of related transactions, consolidate or merge with
or into any Person (other than the Company or a Wholly Owned Subsidiary
Guarantor) or permit any Person (other than a Wholly Owned Subsidiary
Guarantor) to consolidate or merge with or into such Subsidiary Guarantor or,
directly or indirectly, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of its properties and assets unless, in each case:
(1) in a transaction in which such Subsidiary Guarantor does not
survive or in which all or substantially all of the properties and
assets of such Subsidiary Guarantor are transferred, conveyed, sold,
leased or otherwise disposed of, the successor entity (the "Successor
Subsidiary Guarantor") shall be a corporation, partnership, trust or
other entity organized and validly existing under the laws of the
United States of America, any State thereof or the District of
Columbia, and shall expressly assume by an indenture supplemental
hereto executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of all obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture
and the performance of every covenant of this Indenture on the part of
such Subsidiary Guarantor to be performed or observed; and
-48-
<PAGE> 58
(2) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, conveyance, sale, lease or other
disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, complies with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 803. Successor Substituted.
(a) Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
shall succeed to, and be substituted for, 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, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
(b) Upon any consolidation of a Subsidiary Guarantor with, or
merger of such Subsidiary Guarantor into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of such Subsidiary Guarantor in accordance with Section
802, the Successor Subsidiary Guarantor shall succeed to, and be substituted
for, and may exercise every right and power of, such Subsidiary Guarantor under
this Indenture with the same effect as if such successor Person had been named
as a Subsidiary Guarantor herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants under
this Indenture and its Subsidiary Guarantee.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, the Subsidiary Guarantors, when authorized by their
respective Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or
any Subsidiary Guarantor and the assumption by any such successor of
the covenants of the Company or any Subsidiary Guarantor herein and in
the Securities or Subsidiary Guarantees, as the case may be; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
-49-
<PAGE> 59
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective
only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this Clause (9) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect; or
(10) to add new Subsidiary Guarantors.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Subsidiary Guarantors and the Trustee, the Company, when authorized by a Board
Resolution, the Subsidiary Guarantors, when authorized by their respective
Board Resolutions and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
-50-
<PAGE> 60
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date or in the case of an offer to purchase
Securities which has been made pursuant to a covenant contained in
this Indenture, on or after the applicable purchase date), or
subordinate in any manner the payment of the principal of, or the
premium or interest on, any Security to the payment of any other
security, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture,
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 1009, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8); or
(4) following the making of an offer to purchase Securities which
has been made pursuant to a covenant contained in this Indenture,
modify the provisions of this Indenture with respect to such offer to
purchase in a manner adverse to such Holder.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this
-51-
<PAGE> 61
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company, if applicable the Subsidiary
Guarantees may be endorsed thereon and such new Securities may be authenticated
and delivered by the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
-52-
<PAGE> 62
demands to or upon the Company or any Subsidiary Guarantor in respect of the
Securities of that series or any Subsidiary Guarantee and this Indenture may
be served. The Company will 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, and the Company and each Subsidiary Guarantor hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series 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 each Place of Payment for Securities of any series for such
purposes. The Company will 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.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company or any Subsidiary Guarantor shall at any time act
as its own Paying Agent with respect to any series of Securities, it will, on
or before each due date of the principal of or any premium or interest on any
of the Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal and any
premium and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(2) during the continuance of any default by the Company, the Subsidiary
Guarantors, if applicable, or any other obligor upon the Securities of that
series in the making of any payment in respect of the Securities of that
series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of the
Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such
-53-
<PAGE> 63
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, New York, 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 publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
(a) The Company and the Subsidiary Guarantors will deliver to the
Trustee, within 90 days after the end of each fiscal year of the Company ending
after the date hereof, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Company or such Subsidiary Guarantor,
as the case may be, is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company or any Subsidiary Guarantor shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(b) The Company and each Subsidiary Guarantor shall deliver to the
Trustee, as soon as possible and in any event within five days after the
Company or such Subsidiary Guarantor becomes aware or should reasonably become
aware of the occurrence of an Event of Default or an event which, with notice
or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default, and the action which the Company or such Subsidiary Guarantor proposes
to take with respect thereto.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect the
existence, rights (charter and statutory) and franchises of the Company and
each Subsidiary Guarantor; provided, however, that the Company shall not be
required to preserve any such right or franchise 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 that the loss thereof is not
disadvantageous in any material respect to the Holders.
-54-
<PAGE> 64
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1008. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at
all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Company to be responsible
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in accordance with
good business practice.
SECTION 1009. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(20),
901(2) or 901(7) for the benefit of the Holders of such series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
-55-
<PAGE> 65
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities. In case of any redemption at the election
of the Company of less than all the Securities of any series (including any
such redemption affecting only a single Security), the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the
minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
-56-
<PAGE> 66
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any
series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable.
-57-
<PAGE> 67
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, if applicable to Subsidiary Guarantors shall execute the Subsidiary
Guarantee endorsed thereon, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
-58-
<PAGE> 68
ARTICLE TWELVE
[INTENTIONALLY DELETED]
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEE
SECTION 1301. Applicability of Article.
Unless the Company elects to issue any series of Securities
without the benefit of the Subsidiary Guarantees, which election shall be
evidenced in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities pursuant to Section 301, the provisions
of this Article shall be applicable to each series of Securities except as
otherwise specified in or pursuant to the Board Resolution or supplemental
indenture establishing such series pursuant to Section 301.
SECTION 1302. Subsidiary Guarantee.
Subject to Section 1301, each Subsidiary Guarantor hereby, jointly
and severally, fully and unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on such Security
when and as the same shall become due and payable, whether at the Stated
Maturity, by acceleration, call for redemption, offer to purchase or otherwise,
in accordance with the terms of such Security and of this Indenture, and each
Subsidiary Guarantor similarly guarantees to the Trustee the payment of all
amounts owing to the Trustee in accordance with the terms of this Indenture. In
case of the failure of the Company punctually to make any such payment, each
Subsidiary Guarantor hereby, jointly and severally, agrees to cause such
payment to be made punctually when and as the same shall become due and
payable, whether at the Stated Maturity or by acceleration, call for
redemption, offer to purchase or otherwise, and as if such payment were made by
the Company.
Each of the Subsidiary Guarantors hereby jointly and severally
agrees that its obligations hereunder shall be absolute, unconditional,
irrespective of, and shall be unaffected by, the validity, regularity or
enforceability of such Security or this Indenture, the absence of any action to
enforce the same or any release, amendment, waiver or indulgence granted to the
Company or any guarantor or any consent to departure from any requirement of
any other guarantee of all or any of the Securities of such series or any other
circumstances which might otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor; provided, however, that, notwithstanding
the foregoing, no such release, amendment, waiver or indulgence shall, without
the consent of such Subsidiary Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or alter the Stated Maturity
thereof. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand for payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other lien on any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral, filing of
claims with a court
-59-
<PAGE> 69
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Subsidiary Guarantee will not be discharged in respect of
such Security except by complete performance of the obligations contained in
such Security and in such Subsidiary Guarantee. Each Subsidiary Guarantor
agrees that if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Securities
of a series, to collect interest on the Securities of a series, or to enforce
or exercise any other right or remedy with respect to the Securities of a
series, such Subsidiary Guarantor agrees to pay to the Trustee for the account
of the Holders, upon demand therefor, the amount that would otherwise have been
due and payable had such rights and remedies been permitted to be exercised by
the Trustee or any of the Holders.
Each Subsidiary Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Guarantee is endorsed against the
Company in respect of any amounts paid by such Subsidiary Guarantor on account
of such Security pursuant to the provisions of its Subsidiary Guarantee or this
Indenture; provided, however, that no Subsidiary Guarantor shall be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on all
Securities of the relevant series issued hereunder shall have been paid in
full.
Each Subsidiary Guarantor that makes or is required to make any
payment in respect of its Subsidiary Guarantee shall be entitled to seek
contribution from the other Subsidiary Guarantors to the extent permitted by
applicable law; provided, however, that no Subsidiary Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such
right of contribution until the principal of (and premium, if any) and interest
on all Securities of the relevant series issued hereunder shall have been paid
in full.
Each Subsidiary Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company for liquidation or reorganization, should the Company become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities of
a series, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any Holder of the Securities, whether
as a "voidable preference," "fraudulent transfer," or otherwise, all as though
such payment or performance had not been made. In the event that any payment,
or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
SECTION 1303. Execution and Delivery of Subsidiary Guarantees.
The Subsidiary Guarantees to be endorsed on the Securities shall
include the terms of the Subsidiary Guarantee set forth in Section 1302 and any
other terms that may be set forth in the form established pursuant to Section
204. Subject to Section 1301, each of the Subsidiary Guarantors
-60-
<PAGE> 70
hereby agrees to execute its Subsidiary Guarantee, in a form established
pursuant to Section 204, to be endorsed on each Security authenticated and
delivered by the Trustee.
The Subsidiary Guarantee shall be executed on behalf of each
respective Subsidiary Guarantor by any two of such Subsidiary Guarantor's
Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer,
President, one of its Vice Presidents, or its Secretary. The signature of any
or all of these persons on the Subsidiary Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile signature
of individuals who were at any time the proper officers of a Subsidiary
Guarantor shall bind such Subsidiary Guarantor, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of the Security on which such Subsidiary Guarantee
is endorsed or did not hold such offices at the date of such Subsidiary
Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee endorsed thereon on behalf of the Subsidiary Guarantors
and shall bind each Subsidiary Guarantor notwithstanding the fact that
Subsidiary Guarantee does not bear the signature of such Subsidiary Guarantor.
Each of the Subsidiary Guarantors hereby jointly and severally agrees that its
Subsidiary Guarantee set forth in Section 1302 and in the form of Subsidiary
Guarantee established pursuant to Section 204 shall remain in full force and
effect notwithstanding any failure to endorse a Subsidiary Guarantee on any
Security.
SECTION 1304. Release of Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to
a series of Securities, each Subsidiary Guarantee will remain in effect with
respect to the respective Subsidiary Guarantor until the entire principal of,
premium, if any, and interest on the Securities to which such Subsidiary
Guarantee relates shall have been paid in full or otherwise discharged in
accordance with the provisions of such Securities and this Indenture and all
amounts owing to the Trustee hereunder have been paid; provided, however, that
if (i) such Subsidiary Guarantor ceases to be a Subsidiary in compliance with
the applicable provisions of this Indenture, (ii) the Securities are defeased
and discharged pursuant to Section 1502 or (iii) all or substantially all of
the assets of such Subsidiary Guarantor or all of the Capital Stock of such
Subsidiary Guarantor are sold (including by issuance, merger, consolidation or
otherwise) by the Company or any Subsidiary in a transaction complying with the
requirements of this Indenture, then, in each case of (i), (ii) or (iii), upon
delivery by the Company of an Officers' Certificate and an Opinion of Counsel
stating that all conditions precedent herein provided for relating to the
release of such Subsidiary Guarantor from its obligations under its Subsidiary
Guarantee and this Article Thirteen have been complied with, such Subsidiary
Guarantor or the Person acquiring such assets (in the event of a sale or other
disposition of all or substantially all of the assets or Capital Stock of such
Subsidiary Guarantor) shall be released and discharged of its obligations under
its Subsidiary Guarantee and under this Article Thirteen without any action on
the part of the Trustee or any Holder, and the Trustee shall execute any
documents reasonably required in order to acknowledge the release of such
Subsidiary Guarantor from its obligations under its Subsidiary Guarantee
endorsed on the Securities of a series and under this Article Thirteen.
-61-
<PAGE> 71
SECTION 1305. Additional Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to
a series of Securities, the Company will cause any Subsidiary of the Company
that becomes a Subsidiary after the date the Securities of a series are first
issued hereunder to become a Subsidiary Guarantor as soon as practicable after
such Subsidiary becomes a Subsidiary. The Company shall cause any such
Subsidiary to become a Subsidiary Guarantor with respect to the Securities by
executing and delivering to the Trustee (a) a supplemental indenture, in form
and substance satisfactory to the Trustee, which subjects such Person to the
provisions (including the representations and warranties) of this Indenture as
a Subsidiary Guarantor and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
such supplemental indenture and such Person's obligations under its Subsidiary
Guarantee and this Indenture constitute the legal, valid, binding and
enforceable obligations of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be acceptable to
the Trustee in its discretion).
ARTICLE FOURTEEN
[INTENTIONALLY DELETED]
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section
1502 or Section 1503 applied to any Securities or any series of Securities, as
the case may be, designated pursuant to Section 301 as being defeasible
pursuant to such Section 1502 or 1503, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the
conditions set forth below in this Article. Any such election shall be
evidenced in or pursuant to a Board Resolution or in another manner specified
as contemplated by Section 301 for such Securities.
SECTION 1502. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case may
be, the Company shall be deemed to have been discharged from its obligations,
each Subsidiary Guarantor shall be deemed to have been discharged from its
obligations with respect to its Subsidiary Guarantees of such Securities, with
respect to such Securities and Subsidiary Guarantees as provided in this
Section on and after the date the conditions set forth in Section 1504 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the
-62-
<PAGE> 72
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1504 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest
on such Securities when payments are due, (2) the Company's and each Subsidiary
Guarantor's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1503 applied to such Securities.
SECTION 1503. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case may
be, (1) the Company shall be released from its obligations under Section
801(3), Sections 1006 through 1008, inclusive, and any covenants provided
pursuant to Section 301(20), 901(2) or 901(7) for the benefit of the Holders of
such Securities, and (2) the occurrence of any event specified in Sections
501(4) (with respect to any of Section 801(3), Sections 1006 through 1008,
inclusive, and any such covenants provided pursuant to Section 301(20), 901(2)
or 901(7)), 501(5), 501(6), and 501(10) shall be deemed not to be or result in
an Event of Default, in each case with respect to such Securities and
Subsidiary Guarantees as provided in this Section on and after the date the
conditions set forth in Section 1504 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, the Company and the Subsidiary Guarantors, as
applicable, may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein or
in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 1502 or Section 1503 to any Securities or any series of Securities, as
the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee
-63-
<PAGE> 73
(or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the
respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government
Obligation" means (x) any security which is (i) a direct obligation of
the United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i)
or (ii), is not callable or redeemable at the option of the issuer
thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government Obligation which is specified in Clause (x) above
and held by such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and
held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1502 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating 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 instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 1503 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or
any other Securities shall have occurred and be continuing at the time
of such deposit or, with regard to any such event specified in
Sections 501(7) and (8), at any time on or prior to the 121st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 121st day).
-64-
<PAGE> 74
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit shall not cause either the
Trustee or the trust so created to be subject to the Investment
Company Act of 1940.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1505. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 1506, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1504 in respect
of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in trust
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 U.S. Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1504 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
-65-
<PAGE> 75
SECTION 1506. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1502 or 1503 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 1505 with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE SIXTEEN
SINKING FUNDS
SECTION 1601. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided in Section
1602. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.
SECTION 1602. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
-66-
<PAGE> 76
SECTION 1603. Redemption of Securities for Sinking Fund.
Not less than 35 days prior to each sinking fund payment date for
any Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant
to Section 1602 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 32 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
----------------------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
GROUP 1 AUTOMOTIVE, INC.
By
--------------------------------------
Attest:
- --------------------------------
[Signature Blocks for Subsidiary Guarantors]
By
--------------------------------------
Attest:
- --------------------------------
-67-
<PAGE> 77
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
---------------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
---------------------------------------------
-68-
<PAGE> 78
SCHEDULE I
SUBSIDIARY GUARANTORS
<TABLE>
<CAPTION>
SUBSIDIARY STATE OF ORGANIZATION
- ---------- ---------------------
<S> <C>
Southwest Toyota, Inc. Texas
SMC Luxury Cars, Inc. Texas
McCall Automotive Group, Inc. Delaware
Courtesy Nissan, Inc. Texas
Group 1 Ford, Inc. Texas
McKinney Dodge, Inc. Texas
Smith Automotive Group, Inc. Texas
Mike Smith Automotive-H, Inc. Texas
Mike Smith Automotive-N, Inc. Texas
Mike Smith Autoplaza, Inc. Texas
Mike Smith Autoplex, Inc. Texas
Mike Smith Autoplex Buick, Inc. Texas
Mike Smith Autoplex Dodge, Inc. Texas
Mike Smith Autoplex-German Imports, Inc. Texas
Mike Smith Autoplex-V, Inc. Texas
Mike Smith L/M, Inc. Texas
Mike Smith GM, Inc. Texas
Round Rock Nissan, Inc. Texas
Smith, Liu & Corbin, Inc. Texas
Smith, Liu & Kutz, Inc. Texas
Town North Imports, Inc. Texas
Town North Nissand, Inc. Texas
Town North Suzuki, Inc. Texas
Bob Howard Automotive-A, Inc. Oklahoma
Bob Howard Automotive-H, Inc. Oklahoma
Bob Howard Chevrolet, Inc. Oklahoma
Bob Howard Dodge, Inc. Oklahoma
Bob Howard Motors, Inc. Oklahoma
Bob Howard Nissan, Inc. Oklahoma
Howard Automotive Group, Inc. Oklahoma
Howard Pontiac-GMC, Inc. Oklahoma
Foyt Motors, Inc. Texas
Kingwood Motors-H, Inc. Texas
Koons Ford, Inc. Florida
Courtesy Ford, Inc. Florida
Perimeter Ford, Inc. Delaware
Flamingo Ford, Inc. Florida
J. Carroll Management Group, Inc. Florida
Prestige Chrysler Plymouth Northwest Ltd. Texas (limited partnership)
MMK Interests, Inc. Texas
Prestige Chrysler Plymouth South, Ltd. Texas (limited partnership)
Prestige Chrysler Plymouth, Inc. Texas
</TABLE>
-69-
<PAGE> 79
<TABLE>
<CAPTION>
SUBSIDIARY STATE OF ORGANIZATION
- ---------- ---------------------
<S> <C>
Maxwell Chrysler Plymouth Dodge
Jeep Eagle, Ltd. Texas (limited partnership)
Maxwell Chrysler Plymouth Dodge, Inc. Texas
Highland Autoplex, Inc. Texas
Prestige Maxwell, Inc. Delaware
Maxwell Ford, Ltd. Texas (limited partnership)
Maxwell Holdings, Inc. Delaware
Maxwell Texas Management, Inc. Texas
Casa Chevrolet Inc. New Mexico
Casa Chrysler Plymouth Jeep Inc. New Mexico
Johns Automotive Group, Inc. New Mexico
Luby Chevrolet Co. Delaware
Lubbock Motors-F, Ltd. Texas (limited partnership)
Lubbock Motors-T, Ltd. Texas (limited partnership)
Lubbock Automotive-M, Inc. Delaware
Rockwall Automotive-F, Ltd. Texas (limited partnership)
Amarillo Motors-C, Ltd. Texas (limited partnership)
Amarillo Motors-J, Ltd. Texas (limited partnership)
Amarillo Motors-F, Ltd. Texas (limited partnership)
Lubbock Motors, Inc. Texas
Kutz Auto Group, Inc. Texas
Chapparal Dodge, Ltd. Texas (limited partnership)
Colonial Chrysler-Plymouth, Ltd. Texas (limited partnership)
Group 1 Holdings-T, Inc. Delaware
Group 1 Holdings-GM, Inc. Delaware
Delaware Acquisition-CC, L.L.C. Delaware
Delaware Acquisition-GM, L.L.C. Delaware
Delaware Acquisition-T, L.L.C. Delaware
Delaware Acquisition-F, L.L.C. Delaware
Bob Howard Automotive-East, Inc. Oklahoma
GPI Atlanta, Inc. Delaware
Mike Smith Autoplex-A, Inc. Texas
Mike Smith Motors, Inc. Texas
Mike Smith Imports, Inc. Texas
Sunshine Buick Pontiac GMC Truck, Inc. New Mexico
Group 1 Realty, Inc. Delaware
</TABLE>
-70-
<PAGE> 1
Exhibit 4.5
================================================================================
Group 1 Automotive, Inc.,
as Issuer
and
The Subsidiary Guarantors named herein,
as Subsidiary Guarantors
TO
------------------------------
Trustee
--------------
SUBORDINATED INDENTURE
Dated as of __________, 1999
--------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
----------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES................................................................................. 1
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act..................................................................... 2
Affiliate; control...................................................... 2
Authenticating Agent.................................................... 2
Board of Directors...................................................... 2
Board Resolution........................................................ 2
Business Day............................................................ 2
Commission.............................................................. 2
Company................................................................. 2
Company Request......................................................... 3
Company Order........................................................... 3
Corporate Trust Office.................................................. 3
corporation............................................................. 3
Covenant Defeasance..................................................... 3
Defaulted Interest...................................................... 3
Defeasance.............................................................. 3
Depositary.............................................................. 3
Event of Default........................................................ 3
Exchange Act............................................................ 3
Expiration Date......................................................... 3
Global Security......................................................... 3
Holder.................................................................. 3
Indenture............................................................... 3
interest................................................................ 3
Interest Payment Date................................................... 4
Investment Company Act.................................................. 4
Maturity................................................................ 4
Notice of Default....................................................... 4
Officers' Certificate................................................... 4
Opinion of Counsel...................................................... 4
Original Issue Discount Security........................................ 4
Outstanding............................................................. 4
</TABLE>
- --------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Paying Agent............................................................ 5
Person.................................................................. 5
Place of Payment........................................................ 5
Predecessor Security.................................................... 5
Redemption Date......................................................... 5
Redemption Price........................................................ 6
Regular Record Date..................................................... 6
Securities.............................................................. 6
Securities Act.......................................................... 6
Security Register and Security Registrar................................ 6
Special Record Date..................................................... 6
Stated Maturity......................................................... 6
Subsidiary.............................................................. 6
Trust Indenture Act..................................................... 6
Trustee................................................................. 6
U.S. Government Obligation.............................................. 7
Vice President.......................................................... 7
SECTION 102. Compliance Certificates and Opinions.................................... 7
SECTION 103. Form of Documents Delivered to Trustee.................................. 7
SECTION 104. Acts of Holders; Record Dates........................................... 8
SECTION 105. Notices, Etc., to Trustee and Company................................... 10
SECTION 106. Notice to Holders; Waiver............................................... 10
SECTION 107. Conflict with Trust Indenture Act....................................... 11
SECTION 108. Effect of Headings and Table of Contents................................ 11
SECTION 109. Successors and Assigns.................................................. 11
SECTION 110. Separability Clause..................................................... 11
SECTION 111. Benefits of Indenture................................................... 11
SECTION 112. Governing Law........................................................... 11
SECTION 113. Legal Holidays.......................................................... 11
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally......................................................... 12
SECTION 202. Form of Face of Security................................................ 12
SECTION 203. Form of Reverse of Security............................................. 14
SECTION 204. Form of Subsidiary Guarantee............................................ 18
SECTION 205. Form of Legend for Global Securities.................................... 20
SECTION 206. Form of Trustee's Certificate of Authentication......................... 21
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.................................... 21
SECTION 302. Denominations........................................................... 24
SECTION 303. Execution, Authentication, Delivery and Dating.......................... 24
SECTION 304. Temporary Securities.................................................... 25
SECTION 305. Registration, Registration of Transfer and Exchange..................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 27
SECTION 307. Payment of Interest; Interest Rights Preserved.......................... 28
SECTION 308. Persons Deemed Owners................................................... 29
SECTION 309. Cancellation............................................................ 29
SECTION 310. Computation of Interest................................................. 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................................. 30
SECTION 402. Application of Trust Money.............................................. 31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default....................................................... 31
SECTION 502. Acceleration of Maturity; Rescission and Annulment...................... 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................................... 34
SECTION 504. Trustee May File Proofs of Claim........................................ 35
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities....................................................... 35
SECTION 506. Application of Money Collected.......................................... 35
SECTION 507. Limitation on Suits..................................................... 36
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................ 36
SECTION 509. Restoration of Rights and Remedies...................................... 37
SECTION 510. Rights and Remedies Cumulative.......................................... 37
SECTION 511. Delay or Omission Not Waiver............................................ 37
SECTION 512. Control by Holders...................................................... 37
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 513. Waiver of Past Defaults.................................... 38
SECTION 514. Undertaking for Costs...................................... 38
SECTION 515. Waiver of Usury, Stay or Extension Laws.................... 38
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities........................ 39
SECTION 602. Notice of Defaults......................................... 39
SECTION 603. Certain Rights of Trustee.................................. 39
SECTION 604. Not Responsible for Recitals or Issuance of Securities..... 40
SECTION 605. May Hold Securities........................................ 40
SECTION 606. Money Held in Trust........................................ 41
SECTION 607. Compensation and Reimbursement............................. 41
SECTION 608. Conflicting Interests...................................... 41
SECTION 609. Corporate Trustee Required; Eligibility.................... 41
SECTION 610. Resignation and Removal; Appointment of Successor.......... 42
SECTION 611. Acceptance of Appointment by Successor..................... 43
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business............................................ 44
SECTION 613. Preferential Collection of Claims Against Company.......... 47
SECTION 614. Appointment of Authenticating Agent........................ 47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders............................................. 46
SECTION 702. Preservation of Information; Communications
to Holders............................................. 46
SECTION 703. Reports by Trustee......................................... 47
SECTION 704. Reports by Company......................................... 47
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms....................................................... 47
SECTION 802. Subsidiary Guarantors May Consolidate, Etc.,
Only on Certain Terms............................................... 48
SECTION 803. Successor Substituted................................................... 49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...................... 49
SECTION 902. Supplemental Indentures with Consent of Holders......................... 50
SECTION 903. Execution of Supplemental Indentures.................................... 51
SECTION 904. Effect of Supplemental Indentures....................................... 52
SECTION 905. Conformity with Trust Indenture Act..................................... 52
SECTION 906. Reference in Securities to Supplemental Indentures...................... 52
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.............................. 52
SECTION 1002. Maintenance of Office or Agency......................................... 52
SECTION 1003. Money for Securities Payments to Be Held in Trust....................... 53
SECTION 1004. Statement by Officers as to Default..................................... 54
SECTION 1005. Existence............................................................... 54
SECTION 1006. Maintenance of Properties............................................... 55
SECTION 1007. Payment of Taxes and Other Claims....................................... 55
SECTION 1008. Maintenance of Insurance................................................ 55
SECTION 1009. Waiver of Certain Covenants............................................. 55
</TABLE>
-v-
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................................ 56
SECTION 1102. Election to Redeem; Notice to Trustee................................... 56
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....................... 56
SECTION 1104. Notice of Redemption.................................................... 57
SECTION 1105. Deposit of Redemption Price............................................. 58
SECTION 1106. Securities Payable on Redemption Date................................... 58
SECTION 1107. Securities Redeemed in Part............................................. 58
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. Applicability of Article................................................ 59
SECTION 1202. Securities Subordinate to Senior Debt of the Company.................... 59
SECTION 1203. Payment Over of Proceeds Upon Dissolution, Etc.......................... 59
SECTION 1204. No Payment When Senior Debt of the Company in Default................... 60
SECTION 1205. Payment Permitted If No Default......................................... 61
SECTION 1206. Subrogation to Rights of Holders of Senior Debt of the Company.......... 62
SECTION 1207. Provisions Solely to Define Relative Rights............................. 62
SECTION 1208. Trustee to Effectuate Subordination..................................... 62
SECTION 1209. No Waiver of Subordination Provisions................................... 62
SECTION 1210. Notice to Trustee....................................................... 63
SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent.......... 64
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Debt of the Company......... 64
SECTION 1213. Rights of Trustee as Holder of Senior Debt of the Company; Preservation
of Trustee's Rights................................................. 64
SECTION 1214. Article Applicable to Paying Agents..................................... 64
SECTION 1215. Defeasance of this Article Twelve....................................... 64
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEE
SECTION 1301. Applicability of Article................................................ 65
SECTION 1302. Subsidiary Guarantee.................................................... 65
SECTION 1303. Execution and Delivery of Subsidiary Guarantees......................... 67
SECTION 1304. Release of Subsidiary Guarantors........................................ 67
</TABLE>
-vi-
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1305. Additional Subsidiary Guarantors........................................ 68
ARTICLE FOURTEEN
SUBORDINATION OF SUBSIDIARY GUARANTEES
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or
Covenant Defeasance................................................. 68
SECTION 1502. Defeasance and Discharge................................................ 68
SECTION 1503. Covenant Defeasance..................................................... 69
SECTION 1504. Conditions to Defeasance or Covenant Defeasance......................... 69
SECTION 1505. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions....................... 71
SECTION 1506. Reinstatement........................................................... 72
ARTICLE SIXTEEN
SINKING FUNDS
SECTION 1601. Applicability of Article................................................ 73
SECTION 1602. Satisfaction of Sinking Fund Payments with Securities................... 73
SECTION 1603. Redemption of Securities for Sinking Fund............................... 73
TESTIMONIUM............................................................................. 74
SIGNATURES AND SEALS.................................................................... 74
ACKNOWLEDGEMENTS........................................................................ 75
SCHEDULE I.............................................................................. I-1
</TABLE>
-vii-
<PAGE> 9
GROUP 1 AUTOMOTIVE, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1) ................................................... 609
(a)(2) ................................................... 609
(a)(3) ................................................... Not Applicable
(a)(4) ................................................... Not Applicable
(b) ................................................... 608
610
Section 311(a) ................................................... 613
(b) ................................................... 613
Section 312(a) ................................................... 701
702
(b) ................................................... 702
(c) ................................................... 702
Section 313(a) ................................................... 703
(b) ................................................... 703
(c) ................................................... 703
(d) ................................................... 703
Section 314(a) ................................................... 704
(a)(4) ................................................... 101
1004
(b) ................................................... Not Applicable
(c)(1) ................................................... 102
(c)(2) ................................................... 102
(c)(3) ................................................... Not Applicable
(d) ................................................... Not Applicable
(e) ................................................... 102
Section 315(a) ................................................... 601
(b) ................................................... 602
(c) ................................................... 601
(d) ................................................... 601
(e) ................................................... 514
Section 316(a) ................................................... 101
(a)(1)(A) ................................................... 502
512
(a)(1)(B) ................................................... 513
(a)(2) ................................................... Not Applicable
(b) ................................................... 508
(c) ................................................... 104
Section 317(a)(1) ................................................... 503
(a)(2) ................................................... 504
(b) ................................................... 1003
Section 318(a) ................................................... 107
</TABLE>
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 10
INDENTURE, dated as of _____________, 1999, among Group 1 Automotive,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 950 Echo
Lane, Houston, Texas, each of the Subsidiary Guarantors (as hereinafter defined)
and ______________________________, a ___________________________ duly organized
and existing under the laws of ________, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
The Company and the Subsidiary Guarantors are members of the same
consolidated group of companies. The Subsidiary Guarantors will derive direct
and indirect economic benefit from the issuance of the Securities. Accordingly,
each Subsidiary Guarantor has duly authorized the execution and delivery of this
Indenture to provide for its full, unconditional and joint and several guarantee
of the Securities to the extent provided in or pursuant this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE> 11
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
this instrument;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing; provided that direct or indirect beneficial ownership of 10% or more
of the Voting Stock of a Person shall be deemed to control.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any committee of that board duly authorized
to act for it in respect hereof, and with respect to any Subsidiary Guarantor,
either the board of directors of such Subsidiary Guarantor or any committee of
that board duly authorized to act for it in respect hereof.
"Board Resolution" means, with respect to the Company or a Subsidiary
Guarantor, a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or such Subsidiary Guarantor, as the case may be, to
have been duly adopted by its Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
-2-
<PAGE> 12
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
______________________________________ at which at any particular time its
corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1503.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1502.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 205 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
-3-
<PAGE> 13
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company or a Subsidiary Guarantor, as the case may be, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means, as to the Company or a Subsidiary
Guarantor, a written opinion of counsel, who may be counsel for the Company or
such Subsidiary Guarantor, as the case may be, and who shall be acceptable to
the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant
to Section 1502; and
-4-
<PAGE> 14
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company, any Subsidiary Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, any Subsidiary Guarantor or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company, a Subsidiary Guarantor or any other obligor upon
the Securities or any Affiliate of the Company, a Subsidiary Guarantor or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
-5-
<PAGE> 15
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" with respect to any series of Securities shall have the
meaning specified as contemplated by Section 301.
"Significant Subsidiary" means, at any date of determination, any
Subsidiary that represents 10% or more of the Company's total assets at the end
of the most recent fiscal quarter for which financial information is available
or 10% or more of the Company's consolidated net revenues or consolidated
operating income for the most recent four quarters for which financial
information is available.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" of any Person means (1) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (2) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Subsidiary Guarantees" means the guarantees of each Subsidiary
Guarantor as provided in Article Thirteen.
"Subsidiary Guarantors" means (i) the subsidiaries listed in Schedule I
hereto; (ii) any successor of the foregoing; and (iii) each other Subsidiary of
the Company that becomes a Subsidiary Guarantor in accordance with Section 1305
hereof; in each case (i), (ii) and (iii) until such Subsidiary Guarantor ceases
to be such in accordance with Section 1304 hereof.
-6-
<PAGE> 16
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"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 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Subsidiary
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company and/or such Subsidiary Guarantor, as appropriate, shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company or
a Subsidiary Guarantor, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
-7-
<PAGE> 17
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a Subsidiary
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or such Subsidiary Guarantor stating that the information with respect
to such factual matters is in the possession of the Company or such Subsidiary
Guarantor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
-8-
<PAGE> 18
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of
-9-
<PAGE> 19
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: _________________, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by
any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, in the case of the Company addressed to it
at the address of its principal office specified in the first paragraph
of this instrument or at any other address previously furnished in
writing to the Trustee by the Company and, in the case of any
Subsidiary Guarantor, to it at the address of the Company's principal
office specified in the first paragraph of this instrument, Attention
_____________, or at any other address previously furnished in writing
to the Trustee by such Subsidiary Guarantor.
-10-
<PAGE> 20
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any
Subsidiary Guarantor shall bind its successors and assigns, whether so expressed
or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture, the Securities or the
Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforce ability of the remaining pro visions shall not in any way
be affected or impaired thereby.
-11-
<PAGE> 21
SECTION 111. Benefits of Indenture.
Nothing in this Indenture, the Securities or the Subsidiary Guarantees,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, the holders of Senior Debt and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and the Subsidiary Guarantees shall be
governed by and construed in accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, purchase
date or Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
the Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date or purchase date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and, if applicable, the Subsidiary
Guarantees to be endorsed thereon shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities or Subsidiary Guarantees,
as the case may be, as evidenced by their execution thereof. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
-12-
<PAGE> 22
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
Group 1 Automotive, Inc.
______________________________________
No.__________ $ ________
Group 1 Automotive, Inc. a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________________________________, or
registered assigns, the principal sum of ______________________________________
Dollars on ________________________________________________________ [if the
Security is to bear interest prior to Maturity, insert -- , and to pay interest
thereon from _____________ or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on ____________
and ____________ in each year, commencing _________, at the rate of ____% per
annum, until the principal hereof is paid or made available for payment,
provided that any principal and premium, and any such instalment of interest,
which is overdue shall bear interest at the rate of ____% per annum (to the
extent that the payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the _______ or
_______ (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ______%
-13-
<PAGE> 23
per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be
payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ____________, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Group 1 Automotive, Inc.
By
---------------------------------------
Attest:
- ---------------------------
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ____________, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company, the Subsidiary Guarantors named therein and
___________________, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Subsidiary
Guarantors, the Trustee, the holders of Senior Debt and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert -- , limited in aggregate principal
amount to $ __________].
-14-
<PAGE> 24
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ___________ in any year commencing with the year ______ and ending with
the year ______ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after __________, 19__], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before _______________, ___%, and if redeemed] during the 12-month period
beginning _____________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- -----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ____________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ____________ of the years indicated,
-15-
<PAGE> 25
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- -----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to _____________, redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than _____% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year _______ and
ending with the year ______ of [if applicable, insert -- not less than
$ _________ ("mandatory sinking fund") and not more than] $ ________ aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Debt of the Company, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
-16-
<PAGE> 26
[If applicable, insert -- As provided in the Indenture and subject to
certain limitations therein set forth, the obligations of the Company under this
Security are guaranteed on a senior subordinated basis pursuant to the
Subsidiary Guarantees endorsed hereon. The Indenture provides that a Subsidiary
Guarantor shall be released from its Subsidiary Guarantee upon compliance with
certain conditions.]
[If applicable, insert -- The Indenture contains provisions for Defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
-17-
<PAGE> 27
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $ ______ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Subsidiary Guarantee.
SUBSIDIARY GUARANTEE
For value received, each of the Subsidiary Guarantors named (or deemed
herein to be named) below hereby jointly and severally fully and unconditionally
guarantees to the Holder of the Security upon which this Subsidiary Guarantee is
endorsed, and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of (and premium, if any) and interest on such Security
when and as the same shall become due and payable, whether at the Stated
Maturity, by acceleration, call for redemption, offer to purchase or otherwise,
according to the terms thereof and of the Indenture
-18-
<PAGE> 28
referred to therein and to cover all the rights of the Trustee under Section
607. In case of the failure of the Company punctually to make any such payment,
each of the Subsidiary Guarantors hereby jointly and severally agrees to cause
such payment to be made punctually when and as the same shall become due and
payable, whether at the Stated Maturity or by acceleration, call for redemption,
offer to purchase or otherwise, and as if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be absolute and unconditional, irrespective of,
and shall be unaffected by, the validity, regularity or enforceability of such
Security or the Indenture, the absence of any action to enforce the same or any
release, amendment, waiver or indulgence granted to the Company or any other
guarantor, or any consent to departure from any requirement of any other
guarantee of all or of any of the Securities of this series, or any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor; provided, however, that, notwithstanding the
foregoing, no such release, amendment, waiver or indulgence shall, without the
consent of such Subsidiary Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or alter the Stated Maturity
thereof. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other lien on any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral, 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 or notice with
respect to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in such Security and
in this Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after
the occurrence and during the continuance of an Event of Default with respect to
Securities of this series, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of the Securities of this series, to collect interest on the Securities
of this series, or to enforce or exercise any other right or remedy with respect
to the Securities of this series, such Subsidiary Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
The indebtedness of each Subsidiary Guarantor evidenced by this Subsidiary
Guarantee is, to the extent provided in the Indenture, subordinate in right of
payment to the prior payment in full of all Senior Debt of such Subsidiary
Guarantor, and the Subsidiary Guarantee of each Subsidiary Guarantor is issued
subject to the provisions of the Indenture with respect thereto.
No reference herein to the Indenture and no provision of this Subsidiary
Guarantee or of the Indenture shall alter or impair the Subsidiary Guarantee of
any Subsidiary Guarantor, which is absolute and unconditional, of the due and
punctual payment of the principal (and premium, if any) and interest on the
Security upon which this Subsidiary Guarantee is endorsed.
Each Subsidiary Guarantor shall be subrogated to all rights of the Holder
of this Security against the Company in respect of any amounts paid by such
Subsidiary Guarantor on account of this Security pursuant to the provisions of
its Subsidiary Guarantee or the Indenture; provided, however, that such
Subsidiary Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or
-19-
<PAGE> 29
based upon, such right of subrogation until the principal of (and premium, if
any) and interest on this Security and all other Securities of this series
issued under the Indenture shall have been paid in full.
This Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any part of the Company's assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Securities of this series
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any Holder of the Securities of this
series, whether as a "voidable preference," "fraudulent transfer," or otherwise,
all as though such payment or performance had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Securities of this series shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
The Subsidiary Guarantors or any particular Subsidiary Guarantor shall be
released from this Subsidiary Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a Supplemental Indenture to the Trustee in accordance with
the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of first issuance of the Securities of this series will be deemed
to have executed and delivered this Subsidiary Guarantee for the benefit of the
Holder of the Security upon which this Subsidiary Guarantee is endorsed with the
same effect as if such Subsidiary Guarantor was named below and has executed and
delivered this Subsidiary Guarantee.
All terms used in this Subsidiary Guarantee which are defined in the
Indenture referred to in the Security upon which this Subsidiary Guarantee is
endorsed shall have the meanings assigned to them in such Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which this
Subsidiary Guarantee is endorsed shall have been executed by the Trustee under
the Indenture by manual signature.
Reference is made to the Indenture for further provisions with respect to
this Subsidiary Guarantee.
This Subsidiary Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
-20-
<PAGE> 30
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Subsidiary Guarantee to be duly executed.
[Insert Names of Subsidiary Guarantors]
By
-------------------------------------------
Title:
Attest:
- --------------------------------
SECTION 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 206. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
-----------------------------------
As Trustee
By
--------------------------------
Authorized Officer
-21-
<PAGE> 31
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) if the Securities of the series will not have the benefit of the
Subsidiary Guarantees of the Subsidiary Guarantors;
(3) any change to the subordination provisions which applies to the
Securities of the series from those contained in Article Twelve with respect
to the Securities and/or, if applicable, those contained in Article Fourteen
with respect to the Subsidiary Guarantees, and the definitions of Senior Debt
and Designated Senior Debt which shall apply to the Securities of the series,
and, if applicable, the Subsidiary Guarantees;
(4) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(5) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(6) the date or dates on which the principal of any Securities of the
series is payable;
(7) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(8) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
-22-
<PAGE> 32
(9) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(10) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(12) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(13) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(14) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies
or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such amount
shall be determined);
(15) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(16) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(17) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1502 or Section 1503
or both such Sections and, if other than by a
-23-
<PAGE> 33
Board Resolution, the manner in which any election by the Company to defease
such Securities shall be evidenced;
(18) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositories for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 205 and any circumstances
in addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 305 in which any such Global Security may be exchanged
in whole or in part for Securities registered, and any transfer of such
Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(19) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(20) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series; and
(21) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities of each series shall have the benefit of the Subsidiary
Guarantees unless the Company elects otherwise upon the establishment of a
series pursuant to this Section 301.
The Securities shall be subordinated in right of payment to Senior Debt of
the Company as provided in Article Twelve. Each Subsidiary Guarantee shall be
subordinated in right of payment to Senior Debt of the applicable Subsidiary
Guarantor.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
-24-
<PAGE> 34
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company and, if applicable, having endorsed thereon the Subsidiary Guarantees
executed as provided in Section 1303 by the Subsidiary Guarantors to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or
more Board Resolutions as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, and, if applicable, the Subsidiary
Guarantees endorsed thereon will constitute valid and legally binding
obligations of the Subsidiary Guarantors, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
-25-
<PAGE> 35
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Subsidiary Guarantee shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities and, if applicable,
having endorsed thereon the Subsidiary Guarantees in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities and, if applicable,
Subsidiary Guarantees may determine, as evidenced by their execution of such
Securities and Subsidiary Guarantees.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount and, if applicable, having endorsed thereon
Subsidiary Guarantees executed by the Subsidiary Guarantors. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of
-26-
<PAGE> 36
Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, if applicable the Subsidiary Guarantors shall execute the
Subsidiary Guarantees endorsed thereon and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the Subsidiary Guarantees endorsed thereon and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities and, if applicable, the Subsidiary Guarantees endorsed
thereon issued upon any registration of transfer or exchange of Securities shall
be the valid obligations of the Company and, if applicable, the respective
Subsidiary Guarantors, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities and Subsidiaries Guarantees
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
-27-
<PAGE> 37
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute, if applicable the Subsidiary Guarantors shall execute the Subsidiary
Guarantees endorsed thereon and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the Subsidiary Guarantees endorsed thereon and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
-28-
<PAGE> 38
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security, and, if applicable, the Subsidiary
Guarantees endorsed thereon, shall constitute an original additional contractual
obligation of the Company and, if applicable, the respective Subsidiary
Guarantors, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the
manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
-29-
<PAGE> 39
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Subsidiary Guarantors, the Trustee and any agent of the Company,
the Subsidiary Guarantors, or the Trustee may treat the Person in whose name
such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, any Subsidiary Guarantor,
the Trustee nor any agent of the Company, any Subsidiary Guarantor, or the
Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, purchase, registration
of transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30- day months.
-30-
<PAGE> 40
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company or, if applicable, a Subsidiary Guarantor, in the case of
(i), (ii) or (iii) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose money in an amount
sufficient to pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, for principal
and any premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company or a Subsidiary Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company and the Subsidiary
Guarantors; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under
-31-
<PAGE> 41
Section 614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Twelve or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
-32-
<PAGE> 42
(5) a default under the terms of any instrument evidencing or securing any
Debt of the Company or any Subsidiary having an outstanding principal amount
of $10 million individually or in the aggregate which default results in the
acceleration of the payment of all or any portion of such Debt (which
acceleration is not rescinded within a period of 10 days of the occurrence
of such acceleration) or constitutes the failure to pay all or any portion
of the principal amount of such Debt when due; or
(6) the rendering of a final judgment or judgments (not subject to appeal)
against the Company or any Subsidiary in an amount in excess of $10 million
which remains undischarged or unstayed for a period of 60 days after the date
on which the right to appeal has expired;
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company, any Significant
Subsidiary or any group of Subsidiaries that together would constitute a
Significant Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company, any Significant
Subsidiary or any group of Subsidiaries that together would constitute a
Significant Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, any Significant Subsidiary or
any group of Subsidiaries that together would constitute a Significant
Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company, any Significant Subsidiary or any group of
Subsidiaries that together would constitute a Significant Subsidiary or of
any substantial part of its or their property, or ordering the winding up or
liquidation of its or their affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(8) the commencement by the Company, any Significant Subsidiary or any
group of Subsidiaries that together would constitute a Significant Subsidiary
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it or them to the entry of a decree or order for relief in respect of the
Company, any Significant Subsidiary or any group of Subsidiaries that
together would constitute a Significant Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it or them, or the filing by it or
them of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it or them to
the filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company, any Significant Subsidiary or any group of
Subsidiaries that together would constitute a Significant Subsidiary or of
any substantial part of its or their property, or the making by it or them of
an assignment for the benefit of creditors, or the admission by it or them in
writing of its or their inability to pay its or their debts generally as they
become due, or the taking of corporate action by the Company, any Significant
Subsidiary or any group of Subsidiaries that together would constitute a
Significant Subsidiary in furtherance of any such action; or
(9) In the event the Subsidiary Guarantors have issued Subsidiary
Guarantees with respect to the Securities of such series, the Subsidiary
Guarantee of any Subsidiary Guarantor is held by a final non-appealable order
or judgment of a court of competent jurisdiction to be unenforceable or
-33-
<PAGE> 43
invalid or ceases for any reason to be in full force and effect (other than
in accordance with the terms of this Indenture) or any Subsidiary Guarantor
or any Person acting on behalf of any Subsidiary Guarantor denies or
disaffirms such Subsidiary Guarantor's obligations under its Subsidiary
Guarantee (other than by reason of a release of such Subsidiary Guarantor
from its Subsidiary Guarantee in accordance with the terms of this
Indenture); or
(10) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(7) or 501(8)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(7)
or 501 (8) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company or, if applicable, any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
-34-
<PAGE> 44
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, any Subsidiary
Guarantor or any other obligor upon the Securities, or the property or creditors
of the Company, any Subsidiary Guarantor or any other obligor upon the
Securities, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
-35-
<PAGE> 45
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or any Subsidiary Guarantee or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or
any Subsidiary Guarantee may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: Subject to Article Twelve and Article Fourteen, to the payment of
the amounts then due and unpaid for principal of and any premium and interest
on the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal and
any premium and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
-36-
<PAGE> 46
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption or offer by the Company to purchase the
Securities pursuant to the terms of this Indenture, on the Redemption Date or
purchase date, as applicable) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Subsidiary Guarantors, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity
-37-
<PAGE> 47
or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series (including any Security which is required to have
been purchased by the Company pursuant to an offer to purchase by the Company
made pursuant to the terms of this Indenture), or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
-38-
<PAGE> 48
SECTION 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or any Subsidiary
Guarantor.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
each of the Company and the 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 will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means
-39-
<PAGE> 49
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
-40-
<PAGE> 50
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and the Subsidiary
Guarantees, except the Trustee's certificates of authentication, shall be taken
as the statements of the Company or the Subsidiary Guarantors, as the case may
be, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities or the
Subsidiary Guarantees endorsed thereon. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or any Subsidiary Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company and
any Subsidiary Guarantor with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company or any Subsidiary Guarantor, as the case may be.
SECTION 607. Compensation and Reimbursement.
The Company and each Subsidiary Guarantor jointly and severally agree
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
-41-
<PAGE> 51
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
-42-
<PAGE> 52
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Subsidiary Guarantors and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers,
-43-
<PAGE> 53
trusts and duties of the retiring Trustee; but, on the request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
Subsidiary Guarantors, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the Subsidiary
Guarantors shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper
-44-
<PAGE> 54
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company and Subsidiary
Guarantors.
If and when the Trustee shall be or become a creditor of the Company, any
Subsidiary Guarantor or any other obligor upon the Securities, the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company, such Subsidiary Guarantor or any such other
obligor.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent
-45-
<PAGE> 55
by giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 106 to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
________________________,
As Trustee
By______________________,
As Authenticating Agent
By______________________,
Authorized Officer
-46-
<PAGE> 56
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than _______ and _______ in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of the preceding
_________ or _________, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company, the Subsidiary Guarantors
nor the Trustee nor any agent of any of them shall be held accountable by reason
of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with
-47-
<PAGE> 57
the Company and with the Subsidiary Guarantors. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company and Subsidiary Guarantors.
The Company and each of the Subsidiary Guarantors shall file with the
Trustee and the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of related
transactions, consolidate with or merge into any other Person or permit any
other Person to consolidate with or merge into the Company or, directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its assets, unless:
(1) in a transaction in which the Company does not survive or in which the
Company transfers, conveys, sells, leases or otherwise disposes of all or
substantially all of its assets, the successor entity (for purposes of this
Article Eight, a "Successor Company") shall be a corporation, partnership,
trust or other entity organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia,
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium and interest on
all the Securities and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or
prior to) all indebtedness secured thereby;
-48-
<PAGE> 58
(4) any other conditions provided pursuant to Section 301 with respect to
the Securities of a series are satisfied; and
(5) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms.
Except in a transaction resulting in the release of a Subsidiary Guarantor
in accordance with the terms of this Indenture, each Subsidiary Guarantor shall
not, and the Company shall not permit any Subsidiary Guarantor to, in a single
or a series of related transactions, consolidate or merge with or into any
Person (other than the Company or a Wholly Owned Subsidiary Guarantor) or permit
any Person (other than a Wholly Owned Subsidiary Guarantor) to consolidate or
merge with or into such Subsidiary Guarantor or, directly or indirectly,
transfer, convey, sell, lease or otherwise dispose of all or substantially all
of its properties and assets unless, in each case:
(1) in a transaction in which such Subsidiary Guarantor does not survive
or in which all or substantially all of the properties and assets of such
Subsidiary Guarantor are transferred, conveyed, sold, leased or otherwise
disposed of, the successor entity (the "Successor Subsidiary Guarantor")
shall be a corporation, partnership, trust or other entity organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia, and shall expressly assume by
an indenture supplemental hereto executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of all
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee
and this Indenture and the performance of every covenant of this Indenture
on the part of such Subsidiary Guarantor to be performed or observed; and
(2) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
transfer, conveyance, sale, lease or other disposition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, complies with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 803. Successor Substituted.
(a) Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
shall succeed to, and be substituted for, 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, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
-49-
<PAGE> 59
(b) Upon any consolidation of a Subsidiary Guarantor with, or merger of
such Subsidiary Guarantor into, any other Person or any transfer, conveyance,
sale, lease or other disposition of all or substantially all of the properties
and assets of such Subsidiary Guarantor in accordance with Section 802, the
Successor Subsidiary Guarantor shall succeed to, and be substituted for, and may
exercise every right and power of, such Subsidiary Guarantor under this
Indenture with the same effect as if such successor Person had been named as a
Subsidiary Guarantor herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and its Subsidiary Guarantee.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, the Subsidiary Guarantors, when authorized by their respective
Board Resolutions, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any
Subsidiary Guarantor and the assumption by any such successor of the
covenants of the Company or any Subsidiary Guarantor herein and in the
Securities or Subsidiary Guarantees, as the case may be; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default
are to be for the benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or
-50-
<PAGE> 60
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (9) shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect; or
(10) to add new Subsidiary Guarantors.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Subsidiary Guarantors and the Trustee, the Company, when authorized by a Board
Resolution, the Subsidiary Guarantors, when authorized by their respective Board
Resolutions and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date or in the case of an offer to purchase Securities which
has been made pursuant to a covenant contained in this Indenture, on or after
the applicable purchase date), or modify the provisions of this Indenture
with respect to the subordination of the Securities or the Subsidiary
Guarantees in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose
-51-
<PAGE> 61
Holders is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture,
(3) modify any of the provisions of this Section, Section 513 or Section
1009, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1009, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8); or
(4) following the making of an offer to purchase Securities which has been
made pursuant to a covenant contained in this Indenture, modify the
provisions of this Indenture with respect to such offer to purchase in a
manner adverse to such Holder.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
-52-
<PAGE> 62
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company, if applicable the Subsidiary Guarantees
may be endorsed thereon and such new Securities may be authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company or any Subsidiary Guarantor in respect of the Securities of
that series or any Subsidiary Guarantee and this Indenture may be served. The
Company will 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, and the Company and each Subsidiary Guarantor hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series 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
-53-
<PAGE> 63
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will 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.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company or any Subsidiary Guarantor shall at any time act as its
own Paying Agent with respect to any series of Securities, it will, on or before
each due date of the principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and any premium
and interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company, the Subsidiary Guarantors, if
applicable, or any other obligor upon the Securities of that series in the
making of any payment in respect of the Securities of that series, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and
-54-
<PAGE> 64
of general circulation in The City of New York, New York, 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 publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
(a) The Company and the Subsidiary Guarantors will deliver to the Trustee,
within 90 days after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company or such Subsidiary Guarantor, as
the case may be, is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Company or any
Subsidiary Guarantor shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
(b) The Company and each Subsidiary Guarantor shall deliver to the
Trustee, as soon as possible and in any event within five days after the Company
or such Subsidiary Guarantor becomes aware or should reasonably become aware of
the occurrence of an Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or default, and
the action which the Company or such Subsidiary Guarantor proposes to take with
respect thereto.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the existence,
rights (charter and statutory) and franchises of the Company and each Subsidiary
Guarantor; provided, however, that the Company shall not be required to preserve
any such right or franchise 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 that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
-55-
<PAGE> 65
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at all times
all of their properties which are of an insurable nature insured against loss or
damage with insurers believed by the Company to be responsible to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice.
SECTION 1009. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(20),
901(2) or 901(7) for the benefit of the Holders of such series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
-56-
<PAGE> 66
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
-57-
<PAGE> 67
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the identification (and,
in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all
the Outstanding Securities of any series consisting of a single Security are
to be redeemed, the principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for
-58-
<PAGE> 68
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, instalments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, if applicable to
Subsidiary Guarantors shall execute the Subsidiary Guarantee endorsed thereon,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. Applicability of Article.
Unless otherwise provided with respect to the Securities of any series in
or pursuant to the Board Resolution or supplemental indenture establishing such
series of Securities pursuant to Section 301, the provisions of this Article
shall be applicable to each series of Securities.
SECTION 1202. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article Four and Article Fifteen), the payment of the principal of (and premium,
if any) and interest on each and all of the Securities of such series are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Debt of the Company.
No provisions of this Article Twelve shall prevent the occurrence of any
Event of Default.
-59-
<PAGE> 69
SECTION 1203. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt of the
Company shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Debt of the Company, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt of the Company, before the
Holders of the Securities are entitled to receive any payment or distribution of
any kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other Debt of the Company subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred to as a
"Junior Subordinated Payment"), on account of principal of (or premium, if any)
or interest on the Securities or on account of any purchase or other acquisition
of Securities by the Company or any Subsidiary of the Company (all such
payments, distributions, purchases and acquisitions, other than the payment or
distribution of stock or securities of the Company referred to in the second
succeeding paragraph, herein referred to, individually and collectively, as a
"Securities Payment"), and to that end the holders of Senior Debt of the Company
shall be entitled to receive, for application to the payment thereof, any
Securities Payment which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt of the Company is paid in full or
payment thereof provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt of the Company, and if such
fact shall, at or prior to the time of such Securities Payment, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event
such Securities Payment shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Debt of the Company remaining unpaid,
to the extent necessary to pay all Senior Debt of the Company in full, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt of the Company.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include a payment or distribution of stock or securities of the
Company provided for by a plan of reorganization or readjustment authorized by
an order or decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment which stock or
securities are subordinated in right of payment to all then outstanding Senior
Debt of the Company to substantially the same extent as the Securities are so
subordinated as provided in this Article. The consolidation of the Company with,
or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another
-60-
<PAGE> 70
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer such properties and assets as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions set forth in Article Eight.
SECTION 1204. No Payment When Senior Debt of the Company in Default.
In the event that any Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Securities Payment shall be made unless and
until such Senior Payment Default shall have been cured or waived or shall have
ceased to exist or all amounts then due and payable in respect of Senior Debt of
the Company shall have been paid in full, or provision shall have been made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt of the Company; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article Sixteen by delivering and crediting pursuant to Section
1602 Securities which have been acquired (upon redemption or otherwise) prior to
such Senior Payment Default.
"Senior Payment Default" means any default in the payment of principal of
(or premium, if any) or interest on any Senior Debt of the Company when due,
whether at the Stated Maturity of any such payment or by declaration of
acceleration, call for redemption or otherwise.
In the event that any Senior Nonmonetary Default (as defined below) shall
have occurred and be continuing, then, upon the receipt by the Company, the
Subsidiary Guarantors and the Trustee of written notice of such Senior
Nonmonetary Default from the agent for the Designated Senior Debt which is the
subject of such Senior Nonmonetary Default, no Securities Payment shall be made
during the period (the "Payment Blockage Period") commencing on the date of such
receipt of such written notice and ending on the earlier of (i) the date on
which such Senior Nonmonetary Default shall have been cured or waived or shall
have ceased to exist or all Designated Senior Debt the subject of such Senior
Nonmonetary Default shall have been discharged; (ii) the 179th day after the
date of such receipt of such written notice; or (iii) the date on which the
Payment Blockage Period shall have been terminated by written notice to the
Company, any Subsidiary Guarantor or the Trustee from the agent for the
Designated Senior Debt initiating the Payment Blockage Period; provided,
however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Sixteen by delivering and
crediting pursuant to Section 1602 Securities which have been acquired (upon
redemption or otherwise) prior to the date of such receipt of such written
notice. No more than one Payment Blockage Period may be commenced with respect
to the Securities during any 360-day period and there shall be a period of at
least 181 consecutive days in each 360-day period when no Payment Blockage
Period is in effect. For all purposes of this paragraph, no Senior Payment
Default or Senior Nonmonetary Default that existed or was continuing on the date
of commencement of any Payment Blockage Period shall be, or be made, the basis
for the commencement of a subsequent Payment Blockage Period, whether or not
within a period of 360 consecutive days, unless such Senior Payment Default or
Senior Nonmonetary Default shall have been cured for a period of not less than
90 consecutive days.
-61-
<PAGE> 71
"Senior Nonmonetary Default" means the occurrence or existence and
continuance of any event of default with respect to any Designated Senior Debt,
other than a Senior Payment Default, permitting the holders of such Designated
Senior Debt (or a trustee or agent on behalf of the holders thereof) to declare
such Designated Senior Debt due and payable prior to the date on which it would
otherwise become due and payable.
In the event that, notwithstanding the foregoing, the Company shall make
any Securities Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such Securities Payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such Securities Payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Securities Payment
with respect to which Section 1203 would be applicable.
SECTION 1205. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1203 or under the conditions
described in Section 1204, from making Securities Payments, or (b) the
application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the Holders,
if, at the time of such application by the Trustee, it did not have knowledge
that such Securities Payment would have been prohibited by the provisions of
this Article.
SECTION 1206. Subrogation to Rights of Holders of Senior Debt of the Company.
Subject to the payment in full of all amounts due or to become due on or
in respect of Senior Debt of the Company, or the provision for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt of the Company, the Holders of the Securities shall be subrogated to
the rights of the holders of such Senior Debt of the Company to receive payments
and distributions of cash, property and securities applicable to the Senior Debt
of the Company until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Debt of the Company of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt of
the Company by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt of the Company and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt of the Company.
-62-
<PAGE> 72
SECTION 1207. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders on the one hand and the holders
of Senior Debt of the Company on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as among the Company, its creditors other than holders of
Senior Debt of the Company and the Holders of the Securities, the obligation of
the Company, which is absolute and unconditional (and which, subject to the
rights under this Article of the holders of Senior Debt of the Company, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Debt of the Company; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt of the Company to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 1208. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 1209. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt of the Company
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt of the Company may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of the Company, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt of the Company, or otherwise amend or supplement in any
manner Senior Debt of the Company or any instrument evidencing the same or any
agreement under which Senior Debt of the Company is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt of the Company; (iii) release any Person liable
in any manner for the collection of Senior Debt of the Company; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
-63-
<PAGE> 73
SECTION 1210. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt of the Company or from any trustee therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 601, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least three Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of
(and premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt of the Company (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt of the
Company (or a trustee therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt of the Company to participate in any payment
or distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt of the Company held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt of
the Company 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.
-64-
<PAGE> 74
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Debt of the Company.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt of the Company and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company, a Subsidiary Guarantor or to any other Person cash, property
or securities to which any holders of Senior Debt of the Company shall be
entitled by virtue of this Article or otherwise.
SECTION 1213. Rights of Trustee as Holder of Senior Debt of the Company;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of the Company which
may at any time be held by it, to the same extent as any other holder of Senior
Debt of the Company, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1214. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1213 shall not apply to the Company, any Subsidiary
Guarantor or any Affiliate of the Company if it or such Subsidiary Guarantor or
Affiliate acts as Paying Agent.
SECTION 1215. Defeasance of this Article Twelve.
The subordination of the Securities of a series provided by this Article
Twelve is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Fifteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities of such series then outstanding shall thereupon cease
to be subordinated pursuant to this Article Twelve.
-65-
<PAGE> 75
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEE
SECTION 1301. Applicability of Article .
Unless the Company elects to issue any series of Securities without the
benefit of the Subsidiary Guarantees, which election shall be evidenced in or
pursuant to the Board Resolution or supplemental indenture establishing such
series of Securities pursuant to Section 301, the provisions of this Article
shall be applicable to each series of Securities except as otherwise specified
in or pursuant to the Board Resolution or supplemental indenture establishing
such series pursuant to Section 301.
SECTION 1302. Subsidiary Guarantee.
Subject to Section 1301, each Subsidiary Guarantor hereby, jointly and
severally, fully and unconditionally guarantees to each Holder of a Security
authenticated and delivered by the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on such Security when and as the
same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, offer to purchase or otherwise, in accordance
with the terms of such Security and of this Indenture, and each Subsidiary
Guarantor similarly guarantees to the Trustee the payment of all amounts owing
to the Trustee in accordance with the terms of this Indenture. In case of the
failure of the Company punctually to make any such payment, each Subsidiary
Guarantor hereby, jointly and severally, agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by acceleration, call for redemption, offer to purchase or
otherwise, and as if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be absolute, unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of such
Security or this Indenture, the absence of any action to enforce the same or any
release, amendment, waiver or indulgence granted to the Company or any guarantor
or any consent to departure from any requirement of any other guarantee of all
or any of the Securities of such series or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor; provided, however, that, notwithstanding the foregoing, no such
release, amendment, waiver or indulgence shall, without the consent of such
Subsidiary Guarantor, increase the principal amount of such Security, or
increase the interest rate thereon, or alter the Stated Maturity thereof. Each
of the Subsidiary Guarantors hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or any of the
Holders protect, secure, perfect or insure any security interest in or other
lien on any property subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral, 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 or notice with respect
to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Subsidiary Guarantee will not be discharged
in respect of such Security except by complete performance of the obligations
contained in such Security and in such Subsidiary Guarantee. Each Subsidiary
Guarantor
-66-
<PAGE> 76
agrees that if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Securities
of a series, to collect interest on the Securities of a series, or to enforce or
exercise any other right or remedy with respect to the Securities of a series,
such Subsidiary Guarantor agrees to pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
The indebtedness of each Subsidiary Guarantor evidenced by the Subsidiary
Guarantees is, to the extent provided in this Indenture, subordinate and subject
in right of payment to the prior payment in full of all Senior Debt of each
Subsidiary Guarantor, and the Subsidiary Guarantees are issued subject to the
provisions of this Indenture with respect thereto. Each Holder of such Security,
by accepting the same, will be deemed to have (a) agreed to and be bound by such
provisions, (b) authorized and directed the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appointed the Trustee his attorney-in-fact for any and all such
purposes.
Each Subsidiary Guarantor shall be subrogated to all rights of the Holders
of the Securities upon which its Guarantee is endorsed against the Company in
respect of any amounts paid by such Subsidiary Guarantor on account of such
Security pursuant to the provisions of its Subsidiary Guarantee or this
Indenture; provided, however, that no Subsidiary Guarantor shall be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on all
Securities of the relevant series issued hereunder shall have been paid in full.
Each Subsidiary Guarantor that makes or is required to make any payment in
respect of its Subsidiary Guarantee shall be entitled to seek contribution from
the other Subsidiary Guarantors to the extent permitted by applicable law;
provided, however, that no Subsidiary Guarantor shall be entitled to enforce or
receive any payments arising out of, or based upon, such right of contribution
until the principal of (and premium, if any) and interest on all Securities of
the relevant series issued hereunder shall have been paid in full.
Each Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any part of the Company's assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Securities of a series,
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any Holder of the Securities, whether as a
"voidable preference," "fraudulent transfer," or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Securities shall,
to the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
-67-
<PAGE> 77
SECTION 1303. Execution and Delivery of Subsidiary Guarantees.
The Subsidiary Guarantees to be endorsed on the Securities shall include
the terms of the Subsidiary Guarantee set forth in Section 1302 and any other
terms that may be set forth in the form established pursuant to Section 204.
Subject to Section 1301, each of the Subsidiary Guarantors hereby agrees to
execute its Subsidiary Guarantee, in a form established pursuant to Section 204,
to be endorsed on each Security authenticated and delivered by the Trustee.
The Subsidiary Guarantee shall be executed on behalf of each respective
Subsidiary Guarantor by any two of such Subsidiary Guarantor's Chairman of the
Board, Vice Chairman of the Board, Chief Executive Officer, President, one of
its Vice Presidents, or its Secretary. The signature of any or all of these
persons on the Subsidiary Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile signature of
individuals who were at any time the proper officers of a Subsidiary Guarantor
shall bind such Subsidiary Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Subsidiary Guarantee is endorsed or did
not hold such offices at the date of such Subsidiary Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
endorsed thereon on behalf of the Subsidiary Guarantors and shall bind each
Subsidiary Guarantor notwithstanding the fact that Subsidiary Guarantee does not
bear the signature of such Subsidiary Guarantor. Each of the Subsidiary
Guarantors hereby jointly and severally agrees that its Subsidiary Guarantee set
forth in Section 1302 and in the form of Subsidiary Guarantee established
pursuant to Section 204 shall remain in full force and effect notwithstanding
any failure to endorse a Subsidiary Guarantee on any Security.
SECTION 1304. Release of Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a
series of Securities, each Subsidiary Guarantee will remain in effect with
respect to the respective Subsidiary Guarantor until the entire principal of,
premium, if any, and interest on the Securities to which such Subsidiary
Guarantee relates shall have been paid in full or otherwise discharged in
accordance with the provisions of such Securities and this Indenture and all
amounts owing to the Trustee hereunder have been paid; provided, however, that
if (i) such Subsidiary Guarantor ceases to be a Subsidiary in compliance with
the applicable provisions of this Indenture, (ii) the Securities are defeased
and discharged pursuant to Section 1502 or (iii) all or substantially all of the
assets of such Subsidiary Guarantor or all of the Capital Stock of such
Subsidiary Guarantor are sold (including by issuance, merger, consolidation or
otherwise) by the Company or any Subsidiary in a transaction complying with the
requirements of this Indenture, then, in each case of (i), (ii) or (iii), upon
delivery by the Company of an Officers' Certificate and an Opinion of Counsel
stating that all conditions precedent herein provided for relating to the
release of such Subsidiary Guarantor from its obligations under its Subsidiary
Guarantee and this Article Thirteen have been complied with, such Subsidiary
Guarantor or the Person acquiring such assets (in the event of a sale or other
disposition of all or substantially all of the assets or Capital Stock of such
Subsidiary Guarantor) shall be released and discharged of its obligations under
its Subsidiary Guarantee and under this Article Thirteen without any action on
the
-68-
<PAGE> 78
part of the Trustee or any Holder, and the Trustee shall execute any documents
reasonably required in order to acknowledge the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee endorsed on the
Securities of a series and under this Article Thirteen.
SECTION 1305. Additional Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a
series of Securities, the Company will cause any Subsidiary of the Company that
becomes a Subsidiary after the date the Securities of a series are first issued
hereunder to become a Subsidiary Guarantor as soon as practicable after such
Subsidiary becomes a Subsidiary. The Company shall cause any such Subsidiary to
become a Subsidiary Guarantor with respect to the Securities by executing and
delivering to the Trustee (a) a supplemental indenture, in form and substance
satisfactory to the Trustee, which subjects such Person to the provisions
(including the representations and warranties) of this Indenture as a Subsidiary
Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and such
supplemental indenture and such Person's obligations under its Subsidiary
Guarantee and this Indenture constitute the legal, valid, binding and
enforceable obligations of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be acceptable to
the Trustee in its discretion).
ARTICLE FOURTEEN
SUBORDINATION OF SUBSIDIARY GUARANTEES
SECTION 1401. Applicability of Article.
Unless otherwise provided with respect to the Securities of any series in
or pursuant to the Board Resolution or supplemental indenture establishing such
series of Securities pursuant to Section 301, the provisions of this Article
shall be applicable to each series of Securities.
SECTION 1402. Subsidiary Guarantees Subordinate to Senior Debt of Subordinate
Guarantors.
Each Subsidiary Guarantor covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article (subject to the
provisions of Article Four and Article Fifteen), the Subsidiary Guarantee of
such Subsidiary Guarantor is hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Debt of such
Subsidiary Guarantor.
No provisions of this Article Fourteen shall prevent the occurrence of any
Event of Default.
SECTION 1403. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith,
-69-
<PAGE> 79
relative to any Subsidiary Guarantor or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of any
Subsidiary Guarantor, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of any Subsidiary
Guarantor, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Guarantor Proceeding")
the holders of Senior Debt of such Subsidiary Guarantor shall be entitled to
receive payment in full of all amounts due or to become due on or in respect of
all Senior Debt of such Subsidiary Guarantor, or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt of such Subsidiary Guarantor, before the Holders
of the Securities are entitled to receive any payment or distribution of any
kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other of such Subsidiary Guarantor subordinated to the payment of
the Securities, such payment or distribution being hereinafter referred to as a
"Guarantor Junior Subordinated Payment"), on account of the Subsidiary Guarantee
of such Subsidiary Guarantor (all such payments, other than the payment or
distribution of stock or securities of a Subsidiary Guarantor referred to in the
second succeeding paragraph, herein referred to, individually and collectively,
as a "Guarantee Payment"), and to that end the holders of Senior Debt of such
Subsidiary Guarantor shall be entitled to receive, for application to the
payment thereof, any Guarantee Payment which may be payable or deliverable in
respect of such Subsidiary Guarantor's Subsidiary Guarantee in any such
Guarantor Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Guarantee Payment before all Senior Debt of such Subsidiary Guarantor is paid in
full or payment thereof provided for in cash or cash equivalents or otherwise in
a manner satisfactory to the holders of Senior Debt of such Subsidiary
Guarantor, and if such fact shall, at or prior to the time of such Guarantee
Payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such Guarantee Payment shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of such Subsidiary Guarantor for application to the payment of all Senior
Debt of such Subsidiary Guarantor remaining unpaid, to the extent necessary to
pay all Senior Debt of such Subsidiary Guarantor in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior Debt of
such Subsidiary Guarantor.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include a payment or distribution of stock or securities of a
Subsidiary Guarantor provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated in right of payment to all then outstanding
Senior Debt of such Subsidiary Guarantor to substantially the same extent as the
Subsidiary Guarantees are so subordinated as provided in this Article. The
consolidation of a Subsidiary Guarantor with, or the merger of a Subsidiary
Guarantor into, another Person or the liquidation or dissolution of such
Subsidiary Guarantor following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article Eight shall not be deemed a
Guarantor Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which such Subsidiary Guarantor is merged
-70-
<PAGE> 80
or the Person which acquires by conveyance or transfer such properties and
assets as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
SECTION 1404. No Payment When Senior Debt of such Subsidiary Guarantor in
Default.
In the event that any Senior Payment Default shall have occurred and be
continuing, then no Guarantee Payment shall be made unless and until such Senior
Payment Default shall have been cured or waived or shall have ceased to exist or
all amounts then due and payable in respect of the relevant Senior Debt of the
Company shall have been paid in full, or provision shall have been made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of such Senior Debt; provided, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article
Sixteen by delivering and crediting pursuant to Section 1602 Securities which
have been acquired (upon redemption or otherwise) prior to such Senior Payment
Default.
In the event that any Senior Nonmonetary Default shall have occurred and
be continuing, then, upon the receipt by the Company, the Subsidiary Guarantors
and the Trustee of written notice of such Senior Nonmonetary Default from any
holder, or agent for the holders, of any Designated Senior Debt of the Company,
no Guarantee Payment shall be made during the applicable Payment Blockage
Period; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article Sixteen by
delivering and crediting pursuant to Section 1602 Securities which have been
acquired (upon redemption or otherwise) prior to the date of such receipt of
such written notice. No more than one Payment Blockage Period may be commenced
with respect to the Subsidiary Guarantees during any 360-day period and there
shall be a period of at least 181 consecutive days in each 360-day period when
no Payment Blockage Period is in effect. For all purposes of this paragraph, no
Senior Payment Default or Senior Nonmonetary Default that existed or was
continuing on the date of commencement of any Payment Blockage Period shall be,
or be made, the basis for the commencement of a subsequent Payment Blockage
Period, whether or not within a period of 360 consecutive days, unless such
Senior Payment Default or Senior Nonmonetary Default shall have been cured for a
period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, a Subsidiary Guarantor
shall make any Guarantee Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such Guarantee Payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such Guarantee Payment shall be
paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Guarantee Payment
with respect to which Section 1403 would be applicable.
SECTION 1405. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Subsidiary Guarantees shall prevent (a) a Subsidiary Guarantor, at any
time except during the pendency of any Guarantor Proceeding referred to in
Section 1403 or under the conditions described in Section 1404,
-71-
<PAGE> 81
from making Guarantee Payments, or (b) the application by the Trustee of any
money deposited with it hereunder to Guarantee Payments or the retention of such
Guarantee Payment by the Holders, if, at the time of such application by the
Trustee, it did not have knowledge that such Guarantee Payment would have been
prohibited by the provisions of this Article.
SECTION 1406. Subrogation to Rights of Holders of Senior Debt of such Subsidiary
Guarantor.
Subject to the payment in full of all amounts due or to become due on or
in respect of Senior Debt of a Subsidiary Guarantor, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of such Subsidiary Guarantor, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior Debt
of such Subsidiary Guarantor to receive payments and distributions of cash,
property and securities applicable to the Senior Debt of such Subsidiary
Guarantor until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Debt of a Subsidiary Guarantor of
any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Debt of a Subsidiary Guarantor by Holders of the Securities or the
Trustee, shall, as among a Subsidiary Guarantor, its creditors other than
holders of Senior Debt of such Subsidiary Guarantor and the Holders of the
Securities, be deemed to be a payment or distribution by such Subsidiary
Guarantor to or on account of the Senior Debt of such Subsidiary Guarantor.
SECTION 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders on the one hand and the holders
of Senior Debt of a Subsidiary Guarantor on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Subsidiary Guarantees is
intended to or shall (a) impair, as among a Subsidiary Guarantor, its creditors
other than holders of Senior Debt of such Subsidiary Guarantor and the Holders
of the Securities, the obligation of such Subsidiary Guarantor, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt of such Subsidiary Guarantor, is intended to rank
equally with all other general obligations of such Subsidiary Guarantor), to
guarantee payment to the Holders of the Securities of the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against a Subsidiary Guarantor of the Holders of the Securities
and creditors of such Subsidiary Guarantor other than the holders of Senior Debt
of such Subsidiary Guarantor; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Debt of a Subsidiary Guarantor to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
-72-
<PAGE> 82
SECTION 1408. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt of a
Subsidiary Guarantor to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of such Subsidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by such Subsidiary Guarantor
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt of a Subsidiary Guarantor may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of such Subsidiary Guarantor, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Debt of such Subsidiary Guarantor, or otherwise
amend or supplement in any manner Senior Debt of such Subsidiary Guarantor or
any instrument evidencing the same or any agreement under which Senior Debt of
such Subsidiary Guarantor is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Debt of such Subsidiary Guarantor; (iii) release any Person liable in any manner
for the collection of Senior Debt of such Subsidiary Guarantor; and (iv)
exercise or refrain from exercising any rights against such Subsidiary Guarantor
and any other Person.
SECTION 1410. Notice to Trustee.
Each Subsidiary Guarantor shall give prompt written notice to the Trustee
of any fact known to such Subsidiary Guarantor which would prohibit the making
of any payment to or by the Trustee in respect of its Subsidiary Guarantee.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Subsidiary Guarantees, unless and until the Trustee shall have
received written notice thereof from a Subsidiary Guarantor or a holder of
Senior Debt of such Subsidiary Guarantor or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section at least three Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such
-73-
<PAGE> 83
money was received and shall not be affected by any notice to the contrary which
may be received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt of a Subsidiary Guarantor (or a trustee therefor)
to establish that such notice has been given by a holder of Senior Debt of such
Subsidiary Guarantor (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt of a Subsidiary Guarantor to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt of such Subsidiary Guarantor held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 1411. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of a Subsidiary Guarantor
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such Guarantor
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior Debt
of such Subsidiary Guarantor and other indebtedness of such Subsidiary
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1412. Trustee Not Fiduciary for Holders of Senior Debt of such
Subsidiary Guarantor.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt of a Subsidiary Guarantor and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute to Holders
of Securities or to the Company, a Subsidiary Guarantor, or to any other Person
cash, property or securities to which any holders of Senior Debt of such
Subsidiary Guarantor shall be entitled by virtue of this Article or otherwise.
SECTION 1413. Rights of Trustee as Holder of Senior Debt of such Subsidiary
Guarantor; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of a Subsidiary
Guarantor which may at any time be held by it, to the same extent as any other
holder of Senior Debt of such Subsidiary Guarantor, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
-74-
<PAGE> 84
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1413 shall not apply to the Company, any Subsidiary
Guarantor or any Affiliate of the Company if it or such Subsidiary Guarantor or
Affiliate acts as Paying Agent.
SECTION 1415. Defeasance of this Article Fourteen.
The subordination of the Subsidiary Guarantees provided by this Article
Fourteen is expressly made subject to the provisions for defeasance or covenant
defeasance of a series of Securities in Article Fifteen hereof and, anything
herein to the contrary notwithstanding, upon the effectiveness of any such
defeasance or covenant defeasance with respect to a series of Securities, the
Subsidiary Guarantees of the Securities of such series shall thereupon cease to
be subordinated pursuant to this Article Fourteen.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1502 or
Section 1503 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1502 or 1503, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced in or pursuant to a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
SECTION 1502. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations, each
Subsidiary Guarantor shall be deemed to have been discharged from its
obligations with respect to its Subsidiary Guarantees of such Securities, and
the provisions of Articles Twelve and Fourteen shall cease to be effective, with
respect to such Securities and Subsidiary Guarantees as provided in this Section
on and after the date the conditions set forth in
-75-
<PAGE> 85
Section 1504 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1504 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
such Securities when payments are due, (2) the Company's and each Subsidiary
Guarantor's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article,
the Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1503 applied to such Securities.
SECTION 1503. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 through 1008, inclusive, and any covenants provided pursuant to
Section 301(20), 901(2) or 901(7) for the benefit of the Holders of such
Securities, and (2) the occurrence of any event specified in Sections 501(4)
(with respect to any of Section 801(3), Sections 1006 through 1008, inclusive,
and any such covenants provided pursuant to Section 301(20), 901(2) or 901(7)),
501(5), 501(6), and 501(10) shall be deemed not to be or result in an Event of
Default and (3) the provisions of Articles Twelve and Fourteen shall cease to be
effective, in each case with respect to such Securities and Subsidiary
Guarantees as provided in this Section on and after the date the conditions set
forth in Section 1504 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company and the Subsidiary Guarantors, as applicable, may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(4)) or Article Twelve or Article Fourteen, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or Article
to any other provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1502
or Section 1503 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money
-76-
<PAGE> 86
in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any premium and
interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (x) above and held by
such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 1502 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating 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
instrument, there has been a change in the applicable Federal income tax
law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1503 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
-77-
<PAGE> 87
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(7) and
(8), at any time on or prior to the 121st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 121st day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt of the Company or
any Subsidiary Guarantor shall have occurred and be continuing, (B) no
event of default with respect to any Senior Debt of the Company or any
Subsidiary Guarantor shall have resulted in such Senior Debt becoming, and
continuing to be, due and payable prior to the date on which it would
otherwise have become due and payable (unless payment of such Senior Debt
has been made or duly provided for), and (C) no other event of default
with respect to any Senior Debt of the Company or any Subsidiary Guarantor
shall have occurred and be continuing permitting (after notice or lapse of
time or both) the holders of such Senior Debt (or a trustee on behalf of
such holders) to declare such Senior Debt due and payable prior to the
date on which it would otherwise have become due and payable.
(9) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit shall not cause either the Trustee
or the trust so created to be subject to the Investment Company Act of
1940.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1505. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1506, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1504 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium
-78-
<PAGE> 88
and interest, but money so held in trust need not be segregated from other funds
except to the extent required by law. Money and U.S. Government Obligations so
held in trust shall not be subject to the provisions of Article Twelve or
Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1504 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1504 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1506. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1502 or 1503 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1505 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
ARTICLE SIXTEEN
SINKING FUNDS
SECTION 1601. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein referred to as an
-79-
<PAGE> 89
"optional sinking fund payment". If provided for by the terms of any Securities,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1602. Each sinking fund payment shall be applied to the
redemption of Securities as provided for by the terms of such Securities.
SECTION 1602. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1603. Redemption of Securities for Sinking Fund.
Not less than 35 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1602 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 32 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
_________________________
-80-
<PAGE> 90
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
GROUP 1 AUTOMOTIVE, INC.
By_____________________________
Attest:
__________________________
[Signature Blocks for Subsidiary Guarantors]
By_____________________________
Attest:
__________________________
-81-
<PAGE> 91
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of _________, _____, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of _______________________, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
__________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of _________, _____, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of _______________________, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
__________________________
-82-
<PAGE> 92
SCHEDULE I
SUBSIDIARY GUARANTORS
<TABLE>
<CAPTION>
SUBSIDIARY STATE OF ORGANIZATION
- ---------- ---------------------
<S> <C>
Southwest Toyota, Inc. Texas
SMC Luxury Cars, Inc. Texas
McCall Automotive Group, Inc. Delaware
Courtesy Nissan, Inc. Texas
Group 1 Ford, Inc. Texas
McKinney Dodge, Inc. Texas
Smith Automotive Group, Inc. Texas
Mike Smith Automotive-H, Inc. Texas
Mike Smith Automotive-N, Inc. Texas
Mike Smith Autoplaza, Inc. Texas
Mike Smith Autoplex, Inc. Texas
Mike Smith Autoplex Buick, Inc. Texas
Mike Smith Autoplex Dodge, Inc. Texas
Mike Smith Autoplex-German Imports, Inc. Texas
Mike Smith Autoplex-V, Inc. Texas
Mike Smith L/M, Inc. Texas
Mike Smith GM, Inc. Texas
Round Rock Nissan, Inc. Texas
Smith, Liu & Corbin, Inc. Texas
Smith, Liu & Kutz, Inc. Texas
Town North Imports, Inc. Texas
Town North Nissand, Inc. Texas
Town North Suzuki, Inc. Texas
Bob Howard Automotive-A, Inc. Oklahoma
Bob Howard Automotive-H, Inc. Oklahoma
Bob Howard Chevrolet, Inc. Oklahoma
Bob Howard Dodge, Inc. Oklahoma
Bob Howard Motors, Inc. Oklahoma
Bob Howard Nissan, Inc. Oklahoma
Howard Automotive Group, Inc. Oklahoma
Howard Pontiac-GMC, Inc. Oklahoma
Foyt Motors, Inc. Texas
Kingwood Motors-H, Inc. Texas
Koons Ford, Inc. Florida
Courtesy Ford, Inc. Florida
Perimeter Ford, Inc. Delaware
Flamingo Ford, Inc. Florida
J. Carroll Management Group, Inc. Florida
Prestige Chrysler Plymouth Northwest Ltd. Texas (limited partnership)
MMK Interests, Inc. Texas
Prestige Chrysler Plymouth South, Ltd. Texas (limited partnership)
Prestige Chrysler Plymouth, Inc. Texas
</TABLE>
-83-
<PAGE> 93
<TABLE>
<CAPTION>
SUBSIDIARY STATE OF ORGANIZATION
- ---------- ---------------------
<S> <C>
Maxwell Chrysler Plymouth Dodge
Jeep Eagle, Ltd. Texas (limited partnership)
Maxwell Chrysler Plymouth Dodge, Inc. Texas
Highland Autoplex, Inc. Texas
Prestige Maxwell, Inc. Delaware
Maxwell Ford, Ltd. Texas (limited partnership)
Maxwell Holdings, Inc. Delaware
Maxwell Texas Management, Inc. Texas
Casa Chevrolet Inc. New Mexico
Casa Chrysler Plymouth Jeep Inc. New Mexico
Johns Automotive Group, Inc. New Mexico
Luby Chevrolet Co. Delaware
Lubbock Motors-F, Ltd. Texas (limited partnership)
Lubbock Motors-T, Ltd. Texas (limited partnership)
Lubbock Automotive-M, Inc. Delaware
Rockwall Automotive-F, Ltd. Texas (limited partnership)
Amarillo Motors-C, Ltd. Texas (limited partnership)
Amarillo Motors-J, Ltd. Texas (limited partnership)
Amarillo Motors-F, Ltd. Texas (limited partnership)
Lubbock Motors, Inc. Texas
Kutz Auto Group, Inc. Texas
Chapparal Dodge, Ltd. Texas (limited partnership)
Colonial Chrysler-Plymouth, Ltd. Texas (limited partnership)
Group 1 Holdings-T, Inc. Delaware
Group 1 Holdings-GM, Inc. Delaware
Delaware Acquisition-CC, L.L.C. Delaware
Delaware Acquisition-GM, L.L.C. Delaware
Delaware Acquisition-T, L.L.C. Delaware
Delaware Acquisition-F, L.L.C. Delaware
Bob Howard Automotive-East, Inc. Oklahoma
GPI Atlanta, Inc. Delaware
Mike Smith Autoplex-A, Inc. Texas
Mike Smith Motors, Inc. Texas
Mike Smith Imports, Inc. Texas
Sunshine Buick Pontiac GMC Truck, Inc. New Mexico
Group 1 Realty, Inc. Delaware
</TABLE>
-84-
<PAGE> 1
EXHIBIT 5.1
(713) 758-2222 (713) 758-2346
January 25, 1999
Group 1 Automotive, Inc.
950 Echo Lane, Suite 350
Houston, Texas 77024
Ladies and Gentlemen:
We acted as counsel for Group 1 Automotive, Inc., a Delaware
corporation (the "Company") and the Subsidiary Guarantors (as defined below),
in connection with the registration by the Company and the Subsidiary
Guarantors, under the Securities Act of 1933, as amended (the "Securities
Act"), of the offer and sale (a) by the Company from time to time, pursuant to
Rule 415 under the Securities Act, of (i) unsecured debt securities, in one or
more series, consisting of notes, debentures or other evidences of indebtedness
("Debt Securities"), (ii) shares of preferred stock, par value $.01 per share,
of the Company in one or more series ("Preferred Stock"), which may be issued
in the form of depositary shares evidenced by depositary receipts ("Depositary
Shares") and (iii) shares of common stock, par value $.01 per share, of the
Company including attached preferred share purchase rights ("Common Stock") and
(b) by the subsidiaries of the Company (the "Subsidiary Guarantors") from time
to time, pursuant to Rule 415 under the Securities Act of guarantees of the
obligations of the Company under the Debt Securities (the "Guarantees"). The
aggregate initial offering price of the Debt Securities, Preferred Stock,
Depositary Shares and Common Stock offered by the Company in any such offering
will not exceed $250,000,000 or, if applicable, the equivalent thereof in any
other currency or currency unit. The term "Securities" shall collectively refer
to the Debt Securities, the Preferred Stock, the Depositary Shares, the Common
Stock offered by the Company and the Guarantees. The Securities will be offered
in amounts, at prices and on terms to be determined in light of market
conditions at the time of sale and to be set forth in supplements to the
Prospectus contained in the Company's Form S-3 Registration Statement, as
amended (the "Registration Statement"), to which this opinion is an exhibit.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of (i) the Certificate of Incorporation and Bylaws (or
other organizational documents) of the Company and each of the Subsidiary
Guarantors, (ii) the form of Senior Indenture ("Senior Debt Indenture") relating
to senior debt of the Company ("Senior Debt Securities"), including any
<PAGE> 2
Group 1 Automotive, Inc.
Page 2
January 25, 1999
Guarantees thereof, included as an exhibit to the Registration Statement, (iii)
the form of Subordinated Indenture (the "Subordinated Debt Indenture" and
collectively with the Senior Debt Indenture, the "Indentures") relating to
subordinated debt of the Company ("Subordinated Debt Securities"), including any
Guarantees thereof, included as an exhibit to the Registration Statement, and
(iv) such other certificates, instruments and documents as we considered
appropriate for purposes of the opinions hereafter expressed. In addition, we
reviewed such questions of law as we considered appropriate.
In connection with this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), have become effective; (ii) a Prospectus Supplement will have been
prepared and filed with the Commission describing any Securities offered
thereby; (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the applicable Prospectus Supplement; (iv) each
Indenture will be duly authorized, executed and delivered by the parties thereto
in substantially the form reviewed by us; (v) each person signing each Indenture
will have the legal capacity and authority to do so; (vi) at the time of any
offering or sale of any shares of Common Stock or Preferred Stock, that the
Company will have such number of shares of Common Stock or Preferred Stock, as
set forth in such offering or sale, authorized, established (if applicable) and
available for issuance; (vii) a definitive purchase, underwriting or similar
agreement with respect to any Securities offered will have been duly authorized
and validly executed and delivered by the Company and the other parties thereto;
and (viii) Securities issuable upon conversion, exchange or exercise of any
Securities being offered will have been duly authorized, established (if
appropriate) and reserved for issuance upon such conversion, exchange or
exercise (if appropriate).
In addition, in connection with this opinion, with respect to Subsidiary
Guarantors that were organized in jurisdictions other than Texas or Delaware, we
have assumed that the applicable laws of such jurisdictions are the same as the
laws of Texas.
Based upon the foregoing examination and review, we are of the opinion
that:
(i) When (a) the applicable Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended (the "TIA"), (b) the
board of directors of the Company (or a duly authorized
committee thereof) has taken all necessary action to approve the
issuance and terms of any Debt Securities, (c) the terms of such
Debt Securities and of their issuance and sale have been duly
established in conformity with the applicable Indenture so as
not to violate any applicable law or result in a default under
or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirements or restriction
imposed by any court or governmental body having jurisdiction
over the Company, and (d) such Debt Securities have been duly
executed and authenticated in accordance with the applicable
Indenture and issued and sold as contemplated in the
Registration
<PAGE> 3
Group 1 Automotive, Inc.
Page 3
January 25, 1999
Statement, such Debt Securities will constitute valid and
legally binding obligations of the Company, subject to
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium
and similar laws relating to or affecting creditors' rights
generally and to general equitable principles, and any shares of
Common Stock issued upon conversion of any such Debt Securities
in accordance with the terms of the applicable Indenture will be
duly authorized, validly issued, fully paid and nonassessable.
(ii) When (a) the applicable Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended (the "TIA"), (b) the
board of directors of the applicable Subsidiary Guarantor (or a
duly authorized committee thereof) or the other applicable
governing body has taken all necessary action to approve the
issuance and terms of any Guarantee, (c) the terms of such
Guarantee have been duly established in conformity with the
applicable Indenture so as not to violate any applicable law or
result in a default under or breach of any agreement or
instrument binding upon such Subsidiary Guarantor and so as to
comply with any requirements or restriction imposed by any court
or governmental body having jurisdiction over such Subsidiary
Guarantor, and (d) such Guarantees have been duly executed and
authenticated in accordance with the applicable Indenture and
the Debt Securities relating to such Guarantees have been issued
and sold as contemplated in the Registration Statement, such
Guarantees will constitute valid and legally binding obligations
of such Subsidiary Guarantor, subject to bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium and similar laws relating
to or affecting creditors' rights generally and to general
equitable principles.
(iii) When (a) the Board of Directors of the Company (or a duly
authorized committee thereof) has taken all necessary corporate
action to approve the issuance and sale of any shares of Common
Stock or of any series of Preferred Stock (and Depositary
Shares, if applicable), and (b) such shares have been issued and
sold as contemplated in the Registration Statement, all such
shares will be duly authorized, validly issued, fully paid and
nonassessable.
The foregoing opinions are limited to the laws of the United States of
America and the State of Texas and to the General Corporation Law of the State
of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus forming a
part of the Registration Statement under the caption "Legal Matters." In giving
this consent, we do not admit that we are within the category of
<PAGE> 4
Group 1 Automotive, Inc.
Page 4
January 25, 1999
persons whose consent is required under Section 7 of the Securities Act and the
rules and regulations thereunder.
/s/ Vinson & Elkins L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 6, 1998
included in Group 1 Automotive, Inc.'s Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included or incorporated by
reference in this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
January 26, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Group 1 Automotive, Inc. on Form S-3 of our report dated February 6, 1998 on
the financial statements of the Carroll Automotive Group as of December 31,
1997 and for the year then ended included in Group 1 Automotive, Inc.'s Form
8-K filed on May 28, 1998 and to the reference to our Firm under the heading
"experts" in the prospectus, which is part of this registration statement.
Crowe, Chizek and Company, LLP
Ft. Lauderdale, Florida
January 26, 1999
