SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report:
December 28, 2000
W.R. CARPENTER NORTH AMERICA, INC.
(Exact name of registrant as specified in its charter)
STATE OF DELAWARE 333-31187 54-1049647
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
7433 North First Street,
Fresno, CA 93720
(Address of principal executive offices and zip code)
(559) 353-3950
(Registrant's telephone number, including area code)
Item 5. Other Events.
Excess Proceeds Offer to Registered Holders of the Company's Senior
Subordinated Notes.
On December 21, 2000, W.R. Carpenter North America, Inc. (the "Company") mailed
to its noteholders ("Noteholders") an offer (the "Excess Proceeds Offer") to
purchase up to $17,000,000 in principal amount of its 10 5/8% Senior
Subordinated Notes due 2007 (the "Notes"). The amount of the offer corresponds
to the aggregate amount of proceeds received by the Company from the sale by the
Company of a five year unsecured promissory note from United Rentals (North
America), Inc. ("United"). The Excess Proceeds Offer is being made pursuant to
Section 4.10 of the Indenture dated as of June 10, 1997 by and among the
Company, the guarantors named therein and U.S. Trust Company, National
Association (formerly U.S. Trust Company of California, N.A.). The note was one
of two notes received by the Company as partial consideration in connection with
the sale of Horizon High Reach, Inc. to United earlier this year. The other note
in the principal amount of $13,000,000 (the "Pledged Note") will be pledged for
the benefit of the Noteholders as described below. Unless extended by the
Company, the Excess Proceeds Offer will expire on January 23, 2001. The Excess
Proceeds Offer to Holders to Registered Holders of 10 5/8% Senior Subordinated
Notes Due 2007 Issued by W.R.Carpenter North America, Inc. to Purchase up to
$17,000,000 in Principal Amount of Such Notes is attached hereto as Exhibit 10.1
and is incorporated herein by reference.
In connection with the Excess Proceeds Offer, the Company and the Trustee, with
the consent of Noteholders who are not affiliates of the Company and who hold
Notes representing a majority of the outstanding principal amount of the Notes,
entered into an Amendment to Indenture, which is attached hereto as Exhibit 10.2
and is incorporated herein by reference.
Pledge of Promissory Note
Concurrently with the Excess Proceeds Offer, the Company has entered into a Note
Pledge Agreement with the Trustee pursuant to which the Company will pledge the
Pledged Note as security for the benefit of the Noteholders. The Note Pledge
Agreement is attached hereto as Exhibit 10.3 and is incorporated herein by
reference.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
10.1 Excess Proceeds Offer to Holders to Registered Holders of 10 5/8%
Senior Subordinated Notes Due 2007 issued by W.R.Carpenter North
America, Inc. to Purchase up to $17,000,000 in Principal Amount of
Such Notes
10.2 Amendment to Indenture dated December 21,2000 by and between W.R.
Carpenter North America, Inc. and U.S. Trust Company, National
Association
10.3 Note Pledge Agreement dated December 21, 2000 by and between W.R.
Carpenter North America, Inc. and U.S. Trust Company, National
Association.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: December 28, 2000 W.R. CARPENTER NORTH AMERICA, INC.
By /s/ Graham R.Croot
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Title
4
10.1 Excess Proceeds Offer to Holders to Registered Holders of 10 5/8%
Senior Subordinated Notes Due 2007 Issued by W.R.Carpenter North
America, Inc. to Purchase up to $17,000,000 in Principal Amount of
Such Notes
10.2 Amendment to Indenture dated December 15, 2000 by and between W.R.
Carpenter North America, Inc. and U.S. Trust Company, National
Association
10.3 Note Pledge Agreement dated December 20, 2000 by and between W.R.
Carpenter North America, Inc. and U.S. Trust Company, National
Association.
<PAGE>
EXHIBIT 10.1
EXCESS PROCEEDS OFFER TO REGISTERED HOLDERS OF
10 5/8% SENIOR SUBORDINATED NOTES DUE 2007
ISSUED BY W.R. CARPENTER NORTH AMERICA, INC.
TO PURCHASE UP TO $17,000,000 IN PRINCIPAL AMOUNT OF SUCH NOTES
CUSIP NO. 144269AC1"
NOTE: If You Are A Nominee Or A Depository And Not A Beneficial Holder,
Please Forward Copies Of This Notice Immediately To Your Clients Who Are
Beneficial Holders.
PLEASE READ THIS ENTIRE NOTICE CAREFULLY. THERE ARE CHOICES YOU MUST
MAKE BY JANUARY 23, 2001.
o This Excess Proceeds Offer to Registered Holders (sometimes
"You" or "Holder(s)") (the "Offer") begins on December 21, 2000 (the
"Effective Date") and expires on January 23, 2001 at 5:00 p.m. (New
York City time) (the "Expiration Date"), unless extended as provided
below.
o Acceptance of this Offer may be cancelled and Notes previously
surrendered may be withdrawn at any time on or prior to 5:00 p.m.
(New York City time) on the Expiration Date.
o Subject to the limits set forth below on the aggregate
principal amount of Notes to be purchased and the principal amount
of Notes that may be purchased from any Holder, if you accept the
Offer in a timely manner by following the procedures described in
this Offer, the Company will purchase your Note on January 26, 2000
(the "Purchase Date"), except as otherwise provided below and in the
Indenture, as amended.
o You must surrender your Note by 5:00 p.m. (New York City time)
on the Expiration Date to be eligible to have your Note purchased by
the Company.
You have received this Offer because, according to our database records,
you likely are a member of a class of holders of the captioned securities (each
a "Note" and collectively, the "Notes") issued by W.R. Carpenter North America,
Inc., a Delaware corporation (the "Company"). Terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto in the
Indenture (as described below).
Acceptance of Tender
For purposes of this Offer, the Company will be deemed to have accepted an
Election when Notes are tendered and not properly withdrawn as, if and when the
Company gives written notice to the Trustee of the Company's acceptance for
payment of such Notes pursuant to this Offer, upon the terms and subject to the
conditions of this Offer, payment for the Notes accepted pursuant to this Offer
shall be made by wire transfer or draft as directed by You to the Company. Under
no circumstances will interest on the Notes be paid after the Purchase Date
regardless of any delay in making such payment.
The Company sold a $20,000,000 promissory note it received in connection
with the previous sale of a subsidiary for cash consideration of $17,000,000
(the "Available Asset Sale Proceeds"). Pursuant to Section 4.10 of the Indenture
dated as of June 10, 1997, as amended (the "Indenture") among the Company, the
guarantors named therein and U. S. Trust Company, National Association (formerly
known as U.S. Trust Company of California, N.A.), as the Trustee thereunder, you
have the right to require the Company to purchase Notes in an amount up to the
amount of Available Asset Sale Proceeds at a purchase price in cash equal to
100% of the principal amount of the Notes purchase plus accrued and unpaid
interest to the Purchase Date. The principal amount of Notes that may be
purchased from any Holder shall not exceed (i) the percentage of the aggregate
principal amount of all outstanding Notes represented by the principal amount of
Notes held by such Holder, multiplied by (ii) the amount of Available Asset Sale
Proceeds (such limit, the "Individual Limit"). For example, if a Holder holds
$10,500,000 in principal amount of Notes, and the aggregate principal amount of
outstanding Notes is $105,000,000, the Holder's Individual Limit would equal
$1,700,000. As of the Effective Date, there are $105,000,000 in aggregate
principal amount of Notes outstanding.
Offer to Purchase Your Note
Pursuant to Section 4.10 of the Indenture and upon the terms and conditions
provided herein, the Company hereby offers to purchase up to $17,000,000 in
aggregate principal amount of the Notes for a cash purchase price of 100% of the
principal amount of the Notes purchased, plus accrued and unpaid interest from
December 15, 2000 to the date of payment of such cash purchase price. As to any
Holder, the offer is subject to such Holder's Individual Limit.
Background
On December 19, 2000, the Company sold to United Rentals (North America), Inc.
("United") for cash, at a price of $17,000,000, a promissory note (the "United
Note") dated September 28, 2000, issued by United to the Company in the original
principal amount of $20,000,000. The United Note had been issued by United as
partial consideration for United's purchase of all the outstanding stock of the
Company's former wholly-owned subsidiary, Horizon High Reach, Inc. At the time
of the sale of the United Note, the outstanding principal amount thereunder was
$20,000,000. As required by the Indenture, prior to the sale of the United Note
the Company's Board of Directors had determined that the sale price was at least
equal to the fair market value of the United Note. The Company had engaged an
independent placement agent to market the United Note.
The proceeds from the sale of the United Note constitute "Asset Sale Proceeds"
as defined in the Indenture. Because the Asset Sale Proceeds exceed $5,000,000
and the Company has not applied, and will not apply, such proceeds to the
prepayment of debt under a credit facility and the Company has not elected to
apply such proceeds to purchase assets, the proceeds are deemed to be "Available
Asset Sale Proceeds" under the Indenture. Pursuant to the Indenture, holders of
the Notes have the right to require the Company to apply the Available Assets
Sale Proceeds to repurchase the Notes. The Indenture requires the Company to
offer to repurchase Notes with the Available Asset Sale Proceeds at a purchase
price in cash equal to 100% of the principal amount of the Notes, plus accrued
and unpaid interest, if any, to the date of payment. As to any Holder, the Offer
is subject to such Holder's Individual Limit.
Offer Period; Purchase Price; Interest Termination
This Offer will remain open for a period of twenty (20) business days following
the Effective Date, and will expire at 5:00 p.m. (New York City time) on the
Expiration Date but, under certain circumstances described below, such period
may be shortened. The purchase price is equal to 100% of the principal amount of
Notes purchased, plus accrued and unpaid interest to the date of payment. Any
Note accepted for purchase pursuant to this Offer will cease to accrue interest
on and after the date of payment.
Continuation of Interest Accrual
Any Note not validly tendered or accepted for purchase and payment or properly
withdrawn pursuant to this Offer will continue to accrue interest at the rate
set forth in the Note.
<PAGE>
Procedure For Tendering Notes
Holders electing to have a Note purchased pursuant to this Offer are required to
tender their Note and complete and deliver (in person or facsimile thereof with
original to follow) to the Company or the Trustee the attached form entitled
"Option of Holder to Elect Purchase" (the "Election"). The Note must be validly
tendered, and the Holder's signature must be guaranteed (or, in the case of a
book-entry transfer, an Agent's Message (as defined below) in lieu of the
Election) and delivered on or before 5:00 p.m. (New York City time) on the
Expiration Date to the Trustee at the following addresses:
BY HAND
U.S. Trust Company, National Association
c/o United States Trust Company of New York
30 Broad Street, B Level
Corporate Trust Window
New York, NY 10004 - 2304
BY MAIL
U.S. Trust Company, National Association
c/o United States Trust Company of New York
P.O. Box 84
Bowling Green Station
New York, NY 10274 - 0084
Attn: Muni Bond Redemptions
BY OVERNIGHT COURIER
U.S. Trust Company, National Association
c/o United States Trust Company of New York
30 Broad Street, 14th Floor
New York, NY 10004 - 2304
Attn: Corporate Trust Operations
Information Phone Number: 1-800-548-6565
Facsimile Number: 1-646-458-8111
If You tender the entire principal amount of your Note, the amount of the Note
that will be purchased will equal your Individual Limit. If You are tendering
only a portion of the Note for purchase, the principal amount of the Note that
You are tendering must be indicated on the Election. If no such amount is
clearly indicated, You will be deemed to have tendered the entire principal
amount of the Note. If You tender only a portion of the Note, the amount of the
Note that will be purchased will be the lesser of the principal amount of the
Note tendered as indicated on the Election or your Individual Limit. No
alternative, conditional or contingent transfers will be accepted.
Notes held in book entry form must be transferred pursuant to the procedures for
book-entry transfer described herein and a confirmation of such book-entry
transfer, including an Agent's Message (as described below), must be received by
the Trustee (including an Agent's Message if You are not delivering an
Election), in either case on or before 5:00 p.m. (New York City time) on the
Expiration Date. If You do not deliver the documents described above on or
before such time on the Expiration Date, You will not be eligible to have your
Notes purchased by the Company.
THE METHOD OF DELIVERY OF NOTES AND ELECTION, ANY REQUIRED SIGNATURE GUARANTEES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC (AS DESCRIBED
BELOW) AND ANY ACCEPTANCE OF AN AGENT'S MESSAGE TRANSMITTED THROUGH ATOP (AS
DESCRIBED BELOW), ARE AT THE ELECTION AND RISK OF THE HOLDER TENDERING NOTES AND
DELIVERING THE ELECTIONS, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE TRUSTEE OR TIMELY CONFIRMATION OF A BOOK ENTRY TRANSFER OF SUCH
NOTES INTO THE TRUSTEE'S ACCOUNT IS RECEIVED BY THE TRUSTEE. If delivery is by
mail, it is suggested that the Holder use properly insured, registered mail with
return receipt requested, and that the mailing be made sufficiently in advance
of the Expiration Date to permit delivery to the Trustee on or prior to such
date.
Withdrawal Right
You are entitled to withdraw your acceptance of the Offer before the Expiration
Date if the Trustee receives, not later than 5:00 p.m. (New York City time) on
the Expiration Date, a written notice by facsimile transmission or letter
setting forth your name, the principal amount of the Note you delivered or
caused to be delivered for purchase, and a statement that you are withdrawing
your election to have Your Note purchased.
Early Payment Option and Waiver of Withdrawal Right
Holders may elect to be paid before the Purchase Date in consideration for their
timely delivery of an irrevocable waiver of their right to withdraw their
tender. Attached is a form entitled "Early Payment Election and Waiver" (the
"Waiver"). By signing and returning the Waiver properly completed and duly
executed, You may elect to have the Company effect, and the Company will effect,
the purchase of the Notes tendered by You (subject to all terms and conditions
of the Offer, including the limit specified therein on the aggregate principal
amount of Notes to be purchased and the Individual Limit) as soon as practicable
after the date the Trustee timely receives Your signed Waiver, rather than after
the Expiration Date.
Partial Purchase
Holders whose Notes are purchased will be issued new Notes equal in principal
amount to the unpurchased portion of the Notes held by such Holders before the
purchase.
Modification of Offer
Subject to applicable securities laws, the terms of the Indenture, as amended
and the terms set forth in this Offer, the Company reserves the right to
(i) waive any and all unsatisfied conditions to the Offer, (ii) extend the
Expiration Date, or (iii) otherwise amend this Offer in any respect.
Eligibility for Offer
Only (i) those persons in whose name Notes are registered in the registry
maintained by the Trustee under the Indenture or (ii) persons, such as brokers,
dealers, commercial banks, trust companies and other nominees, who are
participants in the Depository Trust Company (the "DTC" and, each participant, a
"DTC Participant") (or a substitute book-entry transfer facility) and whose
names appear on a security listing as owners of the Notes, will be eligible to
tender Notes. Any beneficial owner whose Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender Notes should contact promptly such registered Holder.
DTC Participants
This Offer may be eligible for the DTC Automated Tender Offer Program ("ATOP").
DTC Participants may electronically transmit their acceptance of the Offer by
causing DTC to transfer Notes to the Trustee in accordance with DTC's ATOP
procedures for transfer or such other procedures utilized from time to time by
DTC. DTC will then send an Agent's Message to the Trustee for its acceptance.
The Trustee will establish an account with respect to the Notes at DTC for
purposes of the Offer, and any financial institution that is a participant in
DTC's system may make book-entry delivery of the Notes by causing DTC to
transfer such Notes into the Trustee's account at DTC in accordance with DTC's
procedure for such transfer. Although tenders of Notes may be effected through
book-entry transfer at DTC, a properly completed and duly executed Election (or
a manually signed facsimile thereof) with any required signature guarantees or
an Agent's Message in connection with a book-entry transfer, must, in any case,
be transmitted to and received by the Trustee at the address set forth above on
or prior to the Expiration Date or the Holder must comply with the guaranteed
delivery procedures described herein. Provided that the Trustee receives a
timely Election completed as required herein, Notes shall be deemed delivered if
the DTC Participant complies with the foregoing. The term "Agent's Message"
means a message, transmitted by electronic means to, and received by, the
Trustee and forming a part of a Book-Entry Confirmation that states that DTC has
received an express acknowledgment from the participant in DTC tendering the
Notes that are the subject of such book-entry confirmation, that such
Participant has received and agrees to be bound by the terms of the Election and
that the Company may enforce such agreement against such Participant.
Fees and Costs of Trustee
The Company will pay all fees and costs of the Trustee (including the reasonable
fees and costs of the Trustee's Counsel) in connection with the Offer.
Additional Information
BOOK-ENTRY TRANSFER. The Trustee will establish accounts with respect to
the Notes at DTC for purposes of the Offer within two business days after the
date of this Offer to Purchase. Any financial institution that is a participant
in DTC's system may make a book-entry delivery of Notes by causing DTC to
transfer such Notes into the Trustee's account in accordance with DTC's
procedures for such transfer. However, although delivery of Notes may be
effected through book-entry transfer at DTC, either the Election (or a facsimile
thereof), properly completed and duly executed, together with any required
signature guarantees, or an Agent's Message in lieu of the Election, and any
other required documents, must, in any case, be received by the Trustee at one
of its addresses set forth on the back cover of this Offer to Purchase prior to
the Expiration Date, or the tendering Holder must comply with the guaranteed
delivery procedure described below. Delivery of documents to DTC does not
constitute delivery to the depositary.
SIGNATURE GUARANTEES. Signatures on all[GRAPHIC OMITTED][GRAPHIC OMITTED]
Elections must be guaranteed by a firm which is a member of the Security
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Guarantee Program or the Stock Exchange Medallion Program or is otherwise an
"Eligible Guarantor Institution" (as such term is defined in Rule 17Ad-5 under
the Exchange Act) (each, an "Eligible Institution"), except in cases where Notes
are tendered for the account of an Eligible Institution. If a Certificate is
registered in the name of a person other than the signatory of the Election (or
a facsimile thereof),or if payment is to be made, or a Note not accepted for
payment or not tendered is to be returned, to a person other than the registered
holder(s),then the Note must be endorsed or accompanied by appropriate powers,
in either case signed exactly as the name(s) of the registered holder(s)
appear(s) on the Certificate, with the signature(s) on such Certificate or stock
powers guaranteed by an Eligible Institution. If the Election or stock powers
are signed or any certificate is endorsed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority to so act must be submitted.
GUARANTEED DELIVERY. If a Holder desires to tender Notes pursuant to the
Offer and such Holder cannot deliver all required documents to the Trustee prior
to the Expiration Date, or such Holder cannot complete the procedure for
delivery by book-entry transfer on a timely basis, such Notes may nevertheless
be tendered, provided that all the following conditions are satisfied:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Company, is received prior to the
Expiration Date by the Trustee as provided below; and
(iii) the Notes (or a Book-Entry Confirmation) evidencing all tendered
Notes, in proper form for transfer, in each case together with the Election (or
a facsimile thereof), properly completed and duly executed, with any required
signature guarantees (or, in connection with a book-entry transfer, an Agent's
Message), and any other documents required by the Election are received by the
Trustee within three trading days after the date of execution of such Notice of
Guaranteed Delivery. A "trading day" is any day on which the New York Stock
Exchange and the Nasdaq National Market System are open for business.
The Notice of Guaranteed Delivery may be delivered by hand or mail or
transmitted by telegram or facsimile transmission to the Trustee and must
include a guarantee by an Eligible Institution in the form set forth in the form
of Notice of Guaranteed Delivery made available by the Company.
In all cases, payment for Notes tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Trustee of (i)the
documentation evidencing such Notes, or a Book-Entry Confirmation of the
delivery of such Notes, (ii) the Election (or a facsimile thereof), properly
completed and duly executed, with any required signature guarantees (or, in the
case a book-entry transfer, an Agent's Message), and (iii) any other documents
required by the Election.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE TO BE PAID BY
THE COMPANY FOR THE TENDERED NOTES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR
ANY DELAY IN MAKING SUCH PAYMENT.
THE METHOD OF DELIVERY OF ALL REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH
DTC, IS AT THE OPTION AND RISK OF THE TENDERING NOTEHOLDER, AND THE DELIVERY
WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE TRUSTEE. IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Notes will be determined by the Trustee in its sole discretion, which
determination shall be final and binding on all parties. The Trustee reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance for payment of which may, in the opinion of its
counsel, be unlawful. The Trustee also reserves the absolute right to waive any
condition of the Offer or any defect or irregularity in the tender of any
particular Notes or any particular Holder, whether or not similar defects or
irregularities are waived in the case of other Holders, and the Trustee's
interpretation of the terms and conditions of the Offer will be final and
binding on all persons. No tender of Notes will be deemed to have been validly
made until all defects and irregularities have been cured or waived to the
satisfaction of the Trustee. None of the Company or the Trustee or any other
person will be under any duty to give notification of any defects or
irregularities in tenders or incur any liability for failure to give any such
notification.
The acceptance for payment by the Company of Notes pursuant to any of the
procedures described above will constitute a binding agreemen[GRAPHIC
OMITTED][GRAPHIC OMITTED]t between the tendering Holder and the Company upon the
terms and subject to the conditions of the Offer.
Miscellaneous
This Offer does not constitute an offer or a solicitation to any person to whom
it would be unlawful in any state or other jurisdiction to make this Offer, and
the Offer is not made to, and tenders will not be accepted from, Holders in
states or other jurisdictions in which the Offer or acceptance thereof would
constitute a violation of the securities or Blue Sky Laws of such jurisdiction.
No person has been authorized to give any information or make any
representations or make any recommendation on behalf of the Company as to
whether a Holder should tender Notes pursuant to the Offer. If made or given,
such information or recommendation must not be relied upon.
Although it has no obligation to do so, the Company reserves the right in the
future to seek to acquire Notes not tendered in the Offer, by means of open
market purchases, privately negotiated acquisitions, subsequent exchange or
tender offers, redemptions or otherwise, at prices or on terms which may be
higher or lower or more or less favorable than those in the Offer.
Available Information
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other documents and information with the Securities
and Exchange Commission (the "Commission"). Such reports and other documents and
information may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the regional offices of the Commission
located at 7 World Trade Center, Suite 1300, New York, New York 10048 and
Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, Illinois 60661.
Copies of such material can be obtained from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549. The Commission also maintains a Web Site located at
http://www.sec.gov that contains reports and the aforementioned statements and
other information regarding registrants that have filed electronically with the
Commission, including the Company.
Dated: December 21, 2000
W.R. CARPENTER NORTH AMERICA, INC.
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to tender all of the 10 5/8% Senior Subordinated Note due 2007
(the "Note") issued by W.R. Carpenter North America, Inc. (the "Company")
purchased by the Company pursuant to the offer (the "Offer") set forth in the
letter dated December 21, 2000 from the Company to the holders of the Notes,
check the box below:
The undersigned tenders all Notes held by it.
If you want to tender only part of the Note for purchase by the Company
pursuant to the Offer, state the amount you are tendering:
$_______________
The undersigned agrees that the tender of its Notes is subject to all terms
and conditions set forth in the Offer, including the limit on the principal
amount of Notes that may be purchased and the Individual Limit (as defined in
the Offer) applicable to the undersigned. If the undersigned tenders the entire
principal amount of its Notes, the amount of the Note that will be purchased
will equal the Individual Limit. The undersigned acknowledges that, if it
tenders only a portion of the Notes held by it, the amount of Notes that will be
purchased will be the lesser of the principal amount of the Notes tendered or
the Individual Limit.
$ _________________________
(multiple of $1,000)
Date:
Signature:
Name:_________________________
Title:__________________________
(Note: The signature(s) to this Election must correspond with the name(s) as
written on the face of the Note in every particular, without alteration or
enlargement or any change whatsoever.)
Signature Guaranteed
<PAGE>
EARLY PAYMENT ELECTION AND WAIVER
The undersigned holder of 10 5/8% Senior Subordinated Notes ("Notes") due
2007 of W.R. Carpenter North America, Inc. (the "Company") hereby acknowledges
receipt of an offer letter from the Company dated December 21, 2000, containing
an offer (the "Offer") by the Company to purchase Notes pursuant to Section 4.10
of the Indenture dated as of June 10, 1997, as amended (the "Indenture") among
the Company, the guarantors named therein and US Trust Company of California,
N.A., as Trustee (the "Trustee"). The undersigned holder has accepted the Offer
by tendering its Notes to the Trustee and completing and signing the form
entitled "Option of Holder to Elect Purchase" (the "Election").
By its terms the Offer is open until January 23, 2001 (the "Expiration
Date"). Although, pursuant to Section 4.10 of the Indenture, the undersigned
would otherwise be entitled to withdraw tender of the Notes and its election to
purchase on or before 5:00 p.m. New York City time on the Expiration Date, the
undersigned hereby elects to have the Company effect the purchase of the Notes
tendered by the undersigned (subject to all terms and conditions of the Offer,
including the limit specified therein on the aggregate principal amount of Notes
to be purchased and the Individual Limit (as defined in the Offer)) as soon as
practicable after the date hereof, rather than after the Expiration Date. The
undersigned agrees that, notwithstanding the provisions of the Indenture,
effective upon the receipt by the undersigned of the purchase price for the
Notes purchased from it, the undersigned shall have no right to withdraw its
tender of the Notes or its election to have its Notes purchased. The foregoing
waiver is irrevocable. The undersigned acknowledges that its receipt of such
proceeds earlier than required pursuant to the Indenture is full and adequate
consideration for the waiver contained herein.
____________________________________
Signature of Holder
By: ________________________________
Printed Name: ______________________
Title:__________________________
(Note: The signature(s) to this Election must correspond with the name(s) as
written on the face of the Note in every particular, without alteration or
enlargement or any change whatsoever.)
________________________
Signature Guaranteed
<PAGE>
EXHIBIT 10.2
AMENDMENT TO INDENTURE
THIS AMENDMENT TO INDENTURE (the "Amendment") is dated as of December 15,
2000 and is entered into by and among W.R. Carpenter North America, Inc., a
Delaware corporation (the "Company"), UpRight Inc., a California corporation
("UpRight"), UpRight Foreign Sales Corporation, a United States Virgin Islands
corporation ("Foreign") and U.S. Trust Company, National Association, a national
banking association (the "Trustee"). UpRight and Foreign are collectively
referred to herein as the "Guarantor." Capitalized terms used but not defined
herein shall have the meanings assigned to them in the Indenture.
WHEREAS, Section 9.02 of the Indenture permits the Company, the Guarantors
and the Trustee to modify the Indenture with the written consent of the Holders
of not less than a majority in aggregate principal amount of theoutstanding
Notes ("Required Holders"); and
WHEREAS, the Company, the Guarantors and the Trustee desire to amend the
Indenture as set forth herein and the Required Holders have consented in writing
to such amendment.
NOW THEREFORE, the Indenture is hereby amended as follows:
Section 4.10 of the Indenture is amended to read in its entirety as
follows:
Section 4.10. Limitation on Certain Asset Sales.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or its
Restricted Subsidiaries, as the case may be, receives consideration at the time
of such sale or other disposition at least equal to the fair market value
thereof (as determined in good faith by the Company's board of directors, and
evidenced by a board resolution); (ii) not less than 85% of the consideration
received by the Company or its Subsidiaries, as the case may be, is in the form
of cash or Temporary Cash Investments; and (iii) the Asset Sale Proceeds
received by the Company or such Restricted Subsidiary are applied (a) first, to
the extent the Company elects, or is required, to prepay, repay or purchase debt
of the Company or any Restricted Subsidiary under a Credit Facility within 180
days following the receipt of the Asset Sale Proceeds from any Asset Sale,
provided that any such repayment shall result in a permanent reduction of the
commitments thereunder in an amount equal to the principal amount so repaid; (b)
second, to the extent of the balance of Asset Sale Proceeds after application as
described above, to the extent the Company elects, to an investment in assets
(including Capital Stock or other securities purchased in connection with the
acquisition of Capital Stock or property of another person) used or useful in
businesses similar or ancillary to the business of the Company or Restricted
Subsidiary as conducted at the time of such Asset Sale, provided that such
investment occurs or the Company or a Restricted Subsidiary enters into
contractual commitments to make such investment, subject only to customary
conditions (other than the obtaining of financing), on or prior to the 181st day
following receipt of such Asset Sale Proceeds (the "Reinvestment Date") and
Asset Sale Proceeds contractually committed are so applied within 270 days
following the receipt of such Asset Sale Proceeds; and (c) third, if on the
Reinvestment Date with respect to any Asset Sale or if, prior to the
Reinvestment Date, the Company elects not to, and is not required to, apply such
Asset Sale Proceeds as set forth in clauses (a) and (b) of this paragraph, and
the Available Asset Sale Proceeds exceed $5 million, the Company shall apply an
amount equal to such Available Asset Sale Proceeds to an offer to repurchase the
Notes, at a purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of repurchase (an "Excess
Proceeds Offer"). If an Excess Proceeds Offer is not fully subscribed, the
Company may retain the portion of the Available Asset Sale Proceeds not required
to repurchase Notes.
If the Company is required to make an Excess Proceeds Offer, the Company
shall mail, no later than 30 days following the Reinvestment Date, a notice to
the Holders stating, among other things: (1) that such Holders have the right to
require the Company to apply the Available Asset Sale Proceeds to repurchase
such Notes at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase;
(2) the purchase date (the "Purchase Date"), which shall be no earlier than
30 days (and, in any event, no earlier than five days after the Expiration Date
(as defined below)) and not later than 60 days from the date such notice is
mailed; (3) the instructions, determined by the Company, that each Holder must
follow in order to have such Notes repurchased; and (4) the calculations used in
determining the amount of Available Asset Sale Proceeds to be applied to the
repurchase of such Notes. The Excess Proceeds Offer shall remain open for a
period of 20 Business Days following its commencement (the "Offer Period"). The
last Business Day of the Offer Period is referred to herein as the "Expiration
Date." The notice, which shall govern the terms of the Excess Proceeds Offer,
shall state:
(1) that the Exceeds Proceeds Offer is being made pursuant to this
Section 4.10;
(2) the purchase price and the Expiration Date;
(3) that any Note not tendered or accepted for payment will continue
to accrue interest;
(4) that any Note accepted for payment pursuant to the Excess Proceeds
Offer shall cease to accrue interest on and after the Purchase Date and the
deposit of the purchase price with the Trustee;
(5) that Holders electing to have a Note purchased pursuant to the Excess
Proceeds Offer will be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note (or a separate
form containing substantially similar language) completed, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice prior to the close of business on the Expiration Date;
(6) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not later
than the close of business on the Expiration Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have the Note purchased;
(7) that, if the aggregate principal amount of Notes surrendered by Holders
exceeds the Available Asset Sale Proceeds, the Company shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(8) that Holders whose Notes were purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered.
At the Company's election, the Company may send the notice of the Excess
Proceeds Offer instead of having it sent by the Trustee. The notice may be sent
via facsimile, provided that such notice is also sent in the manner set forth in
Section 12.03. The Excess Proceeds Offer may be accepted via facsimile, provided
that the Holder who so accepts also tenders the Notes.
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, Notes or
portions thereof tendered pursuant to the Excess Proceeds Offer, deposit with
the Paying Agent U.S. legal tender sufficient to pay the purchase price plus
accrued interest, if any, on the Notes to be purchased and deliver to the
Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
Section 4.10. The Paying Agent shall promptly (but in any case not later than 5
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Note tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, the
Guarantors shall endorsee the guarantee thereon and the Trustee shall
authenticate and mail or make available for delivery such new Note to such
Holder equal in principal amount to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly announce the
results of the Excess Proceeds Offer on the Purchase Date by sending a press
release to the Dow Jones News Service or similar business news service in the
United States. If an Excess Proceeds Offer is not fully subscribed, the Company
may retain that portion of the Available Asset Sale Proceeds not required to
repurchase Notes.
Notwithstanding any other provision of this Indenture, the Company may, at
its election, include in the notice for the Excess Proceeds Offer a provision
allowing any holder who accepts the Excess Proceeds Offer to elect to be paid
the purchase price for such Holder's Notes earlier than set forth above, in
consideration for a written waiver of such Holders' right to withdraw its
acceptance of the Excess Proceeds Offer on or before the Expiration Date. Any
Holder who makes such election shall be deemed to have waived its right to
withdraw its acceptance of the Excess Proceeds Offer, effective as of the date
it receives payment for its Notes being purchased. If the aggregate principal
amount of Notes surrendered by Holders exceeds the Available Asset Sale
Proceeds, the allocation procedures set forth in this Section 4.10 shall
continue to apply.
Notwithstanding any other provision of this Indenture, the Company may act
as its own disbursing agent with respect to payment of the purchase pricefor
Notes tendered pursuant to an Excess Proceeds Offer. In such event, all
references in this Section 4.10 to the "Paying Agent" shall be deemed to refer
to the Company, acting as disbursing agent.
IN WITNESS WHEREOF, the parties have executed this
Amendment as of the date first set forth above.
W.R. Carpenter North America, Inc. U.S. Trust Company, National Association,
a national banking association
By: /s/ Graham R. Croot By: /s/ Sandee Parks
Title: Chief Financial Officer Title: Vice President
UpRight, Inc. UpRight Foreign Sales Corporation
By: /s/ Ian Menzies By: Ian Menzies
Title: President Title: President
<PAGE>
EXHIBIT 10.3
NOTE PLEDGE AGREEMENT
THIS AGREEMENT, dated as of the 20th day of December, 2000, made by W.R.
CARPENTER NORTH AMERICA, INC., a Delaware corporation, having its principal
place of business and chief executive office at 7433 N. First Street, Suite 103,
Fresno, California 93720 (the "Company"), for the benefit of U.S. Trust Company,
National Association, as trustee (the "Trustee") under the Indenture dated as of
June 10, 1997 (the "Indenture"), and each holder from time to time of any of the
Secured Obligations (as hereinafter defined) (the Trustee and such holders are
hereinafter referred to collectively as the "Secured Parties" and each,
individually, as a "Secured Party").
W I T N E S S E T H :
WHEREAS, pursuant to the Indenture (capitalized terms used herein without
definition having the respective meanings ascribed to them in the Indenture,
unless the context clearly requires otherwise), the Company issued and sold
$105,000,000 aggregate principal amount of the Company's 10 5/8% Senior
Subordinated Notes due 2007 (such notes, as amended from time to time, and
together with any notes issued in exchange or replacement thereof, the "Secured
Notes");
WHEREAS, the Company has solicited the consent of the Secured Parties to a
waiver of certain requirements of Section 4.10 of the Indenture with respect to
the proceeds of the sale of all of the outstanding shares of common stock of
Horizon High Reach, Inc., a Delaware corporation and a subsidiary of the Company
(the "Subsidiary"), to United Rentals (North America), Inc. (the "Buyer")
pursuant to a Stock Purchase Agreement dated September 28, 2000 among the
Company, the Buyer and the Subsidiary (as amended, the "Stock Purchase
Agreement");
WHEREAS, pursuant to the Stock Purchase Agreement, as partial consideration
for the sale of the common stock of the Subsidiary by the Company, the Buyer
issued to the Company two promissory notes of the Buyer, each in the respective
initial aggregate principal amounts of $20,000,000 and $20,000,001 as more fully
described below;
WHEREAS, in order to consummate the sale of the common stock of the
Subsidiary, the Company obtained the consent of the holders of a majority in
aggregate principal amount of the Secured Notes (the "Majority Noteholders"),
which for purposes of such consent excluded Secured Notes owned by the Company's
Affiliates, and the Company desires to execute and deliver this Agreement and
grant the pledge and liens hereinafter described to secure the Secured Notes on
the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, it is hereby agreed as follows:
1. Security Interest.
(a) As security for the Secured Obligations described in section2 hereof,
the Company hereby pledges and grants and assigns as collateral to the Trustee
on behalf of the Secured Parties, and creates for the benefit of the Secured
Parties a security interest in and lien on, the senior unsecured promissory note
of the Buyer, in the principal amount of $13,000,000 dated September 29, 2000
payable to the order of the Company (such note, as amended from time to time,
and any notes issued in exchange or replacement thereof, the "Pledged Note"),
together with any and all proceeds from the Pledged Note (the "Collateral"). The
Pledged Note was issued as a replacement for the promissory note of the Buyer,
in the original principal amount of $20,000,001, dated September 28, 2000,
payable to the order of the Company (the "Original Note"). The principal amount
of the Original Note was reduced in the Pledged Note pursuant to item (b) of the
"Setoff" paragraph of the Original Note.
(b) The principal amount of $13,000,000 of the Pledged Note is subject to
(i) adjustment as set forth in such Pledged Note and the Stock Purchase
Agreement, and (ii) set off by the Buyer of any amount to which it may be
entitled under Section 6 of the Stock Purchase Agreement or under any agreement
executed by the Buyer and the Company pursuant to which the Company will
purchase equipment from the Buyer (collectively, the "Buyer's Adjustment and Set
Off Rights").
(c) The Company has on or prior to this day delivered to the Trustee, on
behalf of the Secured Parties, the original executed Pledged Note (together with
bond powers executed in blank).
2. Secured Obligations. The pledge, security interest and liens hereby granted
shall secure equally and ratably, except as expressly provided in this
Agreement, the due and punctual payment and performance of the following
liabilities and obligations (collectively, the "Secured Obligations"):
(a) principal of and premium, if any, and interest on and fees and other
amounts payable with respect to the Secured Notes and all guarantees thereof;
and
(b) any and all other indebtedness and obligations of the Company under the
Indenture or this Agreement.
3. Warranties and Covenants of the Company. The Company hereby represents and
warrants to and covenants and agrees with the Secured Parties that:
(a) The Company is the owner of and has good and marketable title to the
Collateral free and clear from any claims, encumbrances, restrictions, equities,
and liens (including any restrictions on transfer of the Pledged Note), other
than (i) the liens arising hereunder, (ii) restrictions on transfer of the
Pledged Note imposed by applicable securities laws and pursuant to the
provisions of the Pledged Note as originally issued (other than the restrictions
waived by the Buyer pursuant to a waiver, a copy of which is attached hereto)
and (iii) the Buyer's Adjustment and Set Off Rights (the matters set forth in
the preceding clauses (i), (ii) and (iii) being referred to collectively and
individually as the "Permitted Restrictions"), and the Company will defend the
Collateral against all claims and demands of all Persons at any time claiming
the same or any interest therein (other than the Permitted Restrictions).
(b) The address shown at the beginning of this Agreement is the chief
executive office and principal place of business of the Company. The
Company will not change its chief executive office or principal place of
business, or make any change in its legal name or conduct business
operations under any fictitious business or trade name (other than any
names specified on Exhibit 3(b) attached hereto), without, in each such
case (i) giving at least 30 days' prior written notice thereof to the
Trustee and the Majority Noteholders and (ii) executing, delivering, filing
and recording all necessary financing statements (or amendments thereto) or
other instruments and documents in order to maintain the validity,
enforceability, priority and perfection of the liens arising hereunder.
(c) Except in each case with the prior written consent of the Trustee and
the Majority Noteholders, the Company will not sell or otherwise dispose of
any of the Collateral or any interest therein and the Company will not
create, assume, incur or suffer to exist any lien of any kind (whether
senior, pari passu or subordinate) on the Collateral (including any
restrictions on transfer of any Pledged Note), other than those arising
hereunder and the Permitted Restrictions; provided that the Company and the
Buyer may modify, amend, supplement, replace, and restate the Pledged Note
pursuant to the Buyer's Adjustment and Set Off Rights. Provided the Trustee
shall receive written authorization and direction from the Company with
respect thereto, the Trustee agrees to deliver the Pledged Note (or any
replacement thereof) and to accept therefor a replacement promissory note
with a reduced principal amount upon any request by Buyer relating to
Buyer's Adjustment and Set Off Rights, including without limitation any
adjustment made by Buyer pursuant to the terms of the Pledged Note, the
Stock Purchase Agreement, or under common law. In no event will the Trustee
have any duty to examine such replacement promissory note or determine
whether such replacement promissory note is in the correct amount as
required under the Stock Purchase Agreement; provided however, that the
Trustee may ask for any document, opinion or instrument it may require for
the release of such instrument but no such request shall create any duty on
the part of the Trustee thereby.
(d) The Company hereby constitutes and appoints the Trustee on behalf of
the Secured Parties its true and lawful attorney, irrevocably, with full
authority and power, upon the occurrence of any Event of Default (as
defined in section 4 below), in the name of and instead of the Company or
otherwise, from time to time at the expense of the Company and without
notice to or demand upon the Company, in the Trustee's discretion, to act,
require, demand, receive, compound and give acquittance for any and all
monies and claims for monies due or to become due to the Company in respect
of the Collateral, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute
any proceedings which the Trustee or, subject to the satisfaction of all
applicable requirements of the Indenture, the Majority Noteholders, may
deem to be necessary or advisable to accomplish the purposes of this
Agreement, which appointment as attorney is coupled with an interest and is
irrevocable. Without limiting the generality of the foregoing, upon the
occurrence and during the continuance of any Event of Default (as defined
in section 4 below), the Trustee on behalf of the Secured Parties shall
have full power: (i) to demand, collect, receive payment of, receipt for,
settle, compromise or adjust, and give discharges and releases in respect
of any of the Collateral; (ii) to commence and prosecute any suits, actions
or proceedings at law or in equity in any court of competent jurisdiction
to collect and/or to enforce any other rights in respect of any of the
Collateral; (iii) to defend any suit, action or proceeding brought against
the Company with respect to any of the Collateral; (iv) to settle,
compromise or adjust any suit, action or proceeding described in clause
(ii) or (iii) above, and, in connection therewith, to give such discharges
or releases as the Trustee on behalf of the Secured Parties may deem
appropriate; and (v) generally to sell, assign, transfer, pledge, make any
agreement in respect of or otherwise deal with the Collateral, in each case
as fully and completely as though the Trustee on behalf of the Secured
Parties were the absolute owners of the Collateral for all purposes;
provided that, whether or not an Event of Default (as defined in section 4
below) occurs, neither Trustee nor any other Secured Party shall have any
right to participate in the adjustments to the Pledged Note pursuant to the
Buyer's Adjustment and Set Off Rights. The Company agrees to reimburse the
Trustee on demand for any payments made or expenses incurred by the Trustee
pursuant to the foregoing authorization and any unreimbursed amounts shall
constitute Secured Obligations for all purposes hereof.
(e) The powers conferred on the Trustee and the other Secured Parties by
this Agreement are solely to protect the interests of the Trustee and the
other Secured Parties and shall not impose any duty whatsoever upon the
Trustee or any of the other Secured Parties to exercise any such power, and
if the Trustee or any of the other Secured Parties shall exercise any such
power, such exercise by the Trustee or such other Secured Party shall not
relieve the Company of any Default or Event of Default, and the Trustee or
such other Secured Party shall be accountable only for amounts actually
received as a result thereof. None of the Trustee or the other Secured
Parties shall be under any obligation to take steps necessary to preserve
the rights in or value of or to collect any sums due in respect of any
Collateral against any other Person but may do so at their option. Without
limiting the generality of the foregoing, the Trustee and the other Secured
Parties shall have no duty or liability whatsoever with respect to any
claim or claims regarding the Company's ownership or purported ownership,
or rights or purported rights arising from, the Pledged Note (or any
portion thereof), whether arising out of any past, current or future event,
circumstance, act or omission or otherwise. Nothing in this Agreement shall
be construed as requiring or obligating the Trustee to make any demand or
to make any inquiry as to the nature and sufficiency of any payment
received by it or to present or file any claim or notice, or to take any
other action with respect to any of the Collateral or the amounts due or to
become due under any thereof, or to collect or enforce the payment of any
amounts assigned to it or to which it may otherwise be entitled hereunder
at any time or times. All of such duties and liabilities shall be
exclusively the obligation of the Company. All expenses incurred in
connection with the protection or preservation of any of the Collateral
shall be borne by the Company. Subject to any provisions of this Agreement,
the Trustee shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral if such Collateral is accorded
the same treatment as the Trustee accords its own property. The designation
of U.S. Trust Company, National Association, as a trustee hereunder shall
in no way create any fiduciary or other relationship of trust between U.S.
Trust Company, National Association, and the Secured Parties or the Company
arising hereunder, except as may be created by or provided in the
Indenture. (f) The Company shall defend, indemnify and hold harmless the
Trustee and each other Secured Party from any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements (including reasonable attorneys' fees and costs)
of any kind whatsoever which may be imposed on, incurred by or asserted
against the Trustee or such other Secured Party in connection with or in
any way arising out of or relating to the Collateral or this Agreement,
other than those which result from a breach of this Agreement by the
Trustee or such other Secured Party or its gross negligence or willful
misconduct.
(g) The Company confirms that value has been given to it by the Trustee and
the other Secured Parties, that it has rights in the Collateral and that it
has not agreed with the Trustee or any of the other Secured Parties to
postpone the time for attachment of any of the pledges or liens granted
hereunder to any of the Collateral. The pledge and liens created by this
Agreement will have effect and be deemed to be effective whether or not the
Secured Obligations are owing or in existence before or after or upon the
date of this Agreement.
(h) All payments and distributions on or with respect to the Collateral,
including, without limitation, payments of principal and interest on the
Pledged Note and any proceeds of any sale by the Company (which sale shall
in any event require the prior written consent of the Trustee and the
Majority Noteholders as provided in Section 3(c)) or by the Trustee or
otherwise shall be paid to and in accordance with the instructions of the
Trustee, on behalf of the Secured Parties (together with all necessary
endorsements) at the time such payment or distribution is made, provided,
however, that payments of interest on the Pledged Note made when no Event
of Default has occurred and is continuing may be paid to and retained by
the Company, instead of the Trustee. The Company has notified the Buyer in
writing that all such payments and distributions (excluding only interest
payments made when no Event of Default has occurred and is continuing) made
by the Buyer are to be paid by the Buyer directly to the Trustee. All
payments and distributions on or with respect to the Collateral, including,
without limitation, payments of principal and interest on the Pledged Note
(excluding only interest payments made when no Event of Default has
occurred and is continuing) and any proceeds of any sale by the Company or
by the Trustee or otherwise shall be applied promptly by the Trustee
following receipt of each such payment or distribution or proceeds in
accordance with Section 4.10(c) of the Indenture.
(i) The Company shall pay to the Trustee upon demand all fees and
out-of-pocket costs and expenses (including attorneys' fees) incurred by
the Trustee in connection with this Agreement and the Trustee's exercise of
its rights, remedies and powers hereunder.
4. Events of Default. The Company shall be in default under this Agreement if
any one or more of the following events (each an "Event of Default") shall occur
and continue (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body): (a) if default shall be made in the
performance or observance of any covenant, agreement or condition contained in
sections 3(a), 3(b), 3(c), 3(d) or 3(h) of this Agreement;
(b) if default shall be made in the performance or observance of any other
of the representations, warranties, covenants, agreements or conditions
contained in this Agreement and such default shall have continued for a
period of 30 days after the earlier of (i) the Company's obtaining actual
knowledge of such default or (ii) the Company's receipt of written notice
of such default; or
(c) if any other Event of Default as defined in the Indenture shall occur.
5. Rights and Remedies. Upon the occurrence of any Event of Default, the
Trustee, on behalf of the Secured Parties, shall have the following rights and
remedies:
(a) all rights and remedies provided by law or in equity, including,
without limitation, those provided by the Uniform Commercial Code;
(b) all rights and remedies provided in this Agreement; and
(c) all rights and remedies provided in the Indenture or in any other
agreement, document or instrument pertaining to any of the Secured
Obligations; provided that the exercise of any right or remedy
relating to the Collateral shall be subject to the provisions of
Article VI of the Indenture.
6. Right to Dispose of Pledged Note.
(a) Without limiting the scope of section 5 hereof, upon the occurrence
and during the continuance of any Event of Default, the Trustee on
behalf of the Secured Parties shall have the right and power to sell,
resell, assign and deliver, or otherwise dispose of any or all of the
Collateral (provided that no such sale shall be deemed to alter or
eliminate any of the Permitted Restrictions against any holder of the
Pledged Note) for cash and/or credit, in one or more sales, at any
exchange or broker's board, or at public or private sale and upon such
terms and at such place or places and at such time or times and to
such Persons (including, without limitation, the Secured Parties (or
any of them)), to the extent permitted by law, as the Trustee deems
expedient, all without demand for performance by the Company or any
notice or advertisement whatsoever except as may be required by this
Agreement or by law. Unless the Collateral threatens to decline
speedily in value or is of a type customarily sold on a recognized
market, the Trustee will give the Company at least ten (10) days'
prior written notice of the time and place of any public sale thereof
or of the time after which any private sale or any other intended
disposition thereof is to be made. Any such notice shall be deemed to
meet any requirement hereunder or under any applicable law (including
the Uniform Commercial Code) that reasonable notification be given of
the time and place of such sale or other disposition. After deducting
all costs and expenses of collection, storage, custody, sale or other
disposition and delivery (including legal costs and reasonable
attorneys' fees) and all other charges against the Collateral, the
residue of the proceeds of any such sale or disposition shall be
applied in accordance with Section 3(i). In the event the proceeds of
any sale, lease or other disposition of the Collateral hereunder are
insufficient to repurchase and pay all of the Secured Obligations in
full, the Company will be liable for the deficiency, and the cost and
expenses of collection of such deficiency, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
(b) The Company recognizes that the Trustee may be unable to effect a
public sale of all or a part of the Pledged Note by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, or
any other applicable securities law, but may be compelled to resort to
one or more private sales to a restricted group of purchasers, each of
whom will be obligated to agree, among other things, to acquire such
Pledged Note for its own account, for investment and not with a view
to the distribution or resale thereof. The Company acknowledges that
private sales so made may be at prices and upon other terms less
favorable to the seller than if such Pledged Note were sold at public
sales, and that the Trustee has no obligation to delay sale of any
such Pledged Note for the period of time necessary to permit such
Pledged Note to be registered for public sale under the Securities Act
of 1933, as amended.
(c) The Trustee acknowledges that, unless otherwise consented to by the
Buyer, the Pledged Note may only be transferred to an Eligible
Assignee (as defined in the Pledged Note).
7. Waivers, Remedies Cumulative, etc.
(a) The Company hereby waives presentment, demand, notice, protest and,
except as is otherwise explicitly provided herein, all other demands
and notices in connection with this Agreement or the enforcement of
any of the rights and remedies of the Trustee or the other Secured
Parties hereunder or in connection with any Secured Obligations or any
Collateral, consents to and waives notice of the granting of renewals,
extensions of time for payment or other indulgences to the Company or
any other Person, or substitution, release or surrender of any
Collateral, the addition or release of Persons primarily or
secondarily liable on any Secured Obligation, the acceptance of
partial payments on any Secured Obligation and/or the settlement or
compromise thereof. To the extent permitted by law, the Company also
hereby waives any rights and/or defenses the Company may have under
any anti-deficiency laws or other laws limiting, qualifying or
discharging the Secured Obligations and/or any of the remedies of the
Secured Parties against the Company. The Company further waives, to
the extent permitted by law: (i) any right it may have under any
applicable law (including the constitution of any jurisdiction in
which any of the Collateral may be located and the Constitution of the
United States of America) to notice (other than any requirement of
notice explicitly provided herein) or to a judicial hearing prior to
the exercise of any right or remedy provided by this Agreement or the
Indenture and any right to set aside or invalidate any sale duly
consummated in accordance with the foregoing provisions hereof on the
grounds (if such be the case) that the sale was consummated without a
prior judicial hearing; (ii) any right to damages occasioned by any
lawful exercise by Trustee or any of the other Secured Parties of any
right or remedy hereunder or referred to herein; (iii) all other
requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of the Secured Parties'
rights hereunder; and (iv) all rights of redemption, appraisement,
valuation, stay, extension or moratorium now or hereafter in force
under any applicable law. The Trustee and the other Secured Parties
shall not be required to marshall any Collateral (or any part thereof)
in any particular order. To the extent permitted by law, the Company
hereby agrees it will not invoke any right it may have under any law
to require the marshalling of Collateral or any other right under any
law which might cause delay in or impede the enforcement of the rights
of the Trustee or any of the other Secured Parties under this
Agreement or the Indenture, and the Company hereby irrevocably waives
the benefits of all such laws. Any sale of, or the grant of options to
purchase, or any other realization upon, any Collateral shall operate
to divest all right, title, interest, claim and demand, either at law
or in equity, of the Company therein and thereto, and shall be a
perpetual bar both at law and in equity against the Company and
against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof,
from, through and under the Company.
(b) Except for the Permitted Restrictions, the Company hereby represents
and warrants to the Trustee and the other Secured Parties that there
is no restriction imposed by any agreement, document or instrument
which will in any way affect or impair the pledge of the Pledged Note
hereunder or the exercise by Trustee or the other Secured Parties of
any right granted hereunder, including, without limitation, the right
of the Trustee on behalf of the Secured Parties to dispose of the
Pledged Note in accordance with the terms hereof. The Company hereby
agrees that it will take any further action which the Trustee or the
other Secured Parties may reasonably request in order that the Trustee
and the other Secured Parties may obtain and enjoy the full rights and
benefits granted to the Trustee and the other Secured Parties by this
Agreement free of any such restrictions.
(c) To the extent permitted by law, the obligations of the Company under
this Agreement shall remain in full force and effect without regard
to, and shall not be impaired by (i) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or
the like of the Company, or of any other Person; (ii) any exercise or
nonexercise, or any waiver, by the Secured Parties, of any right,
remedy, power or privilege under or in respect of any of the Secured
Obligations or any of the Collateral or any other security therefor;
(iii) any amendment to or modification of this Agreement, the Secured
Notes or the Indenture; or (iv) the taking of additional security for
or any guarantee of any of the Secured Obligations or the release or
discharge or termination of any security or guarantee for any of the
Secured Obligations; and whether or not the Company shall have notice
or knowledge of any of the foregoing.
(d) No remedy conferred herein or in the Indenture upon the Secured
Parties is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or under the Indenture or now or
hereafter existing at law or in equity or by statute or otherwise. No
course of dealing between the Company or any affiliate of the Company
and the Trustee or any of the other Secured Parties and no delay in
exercising any rights hereunder or under the Indenture shall operate
as a waiver of any right of the Trustee or any of the other Secured
Parties. No waiver by the Trustee or any of the other Secured Parties
of any default shall be effective unless made in writing and otherwise
in accordance with the terms of the Indenture and no such waiver shall
extend to or affect any obligation not expressly waived or impair any
right consequent thereon.
(e) The Company's waivers set forth in this Agreement (including, without
limitation, those set forth in this section 7) have been made
voluntarily, intelligently and knowingly and after the Company has
been apprised and counseled by its attorneys as to the nature thereof
and its possible alternative rights.
(f) No failure on the part of the Trustee to exercise, and no delay on the
part of the Trustee in exercising, and no course of dealing with
respect to, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the
Trustee of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
remedy. Each right, power and remedy herein specifically granted to
the Trustee or otherwise available to it shall be cumulative, and
shall be in addition to every other right, power and remedy herein
specifically given or now or hereafter existing at law, in equity, or
otherwise (including, without limitation, all rights, powers and
remedies granted to a secured party under the New York Uniform
Commercial Code); and each such right, power and remedy, whether
specifically granted herein or otherwise existing, may be exercised at
any time and from time to time as often and in such order as may be
deemed expedient by the Trustee in its sole and complete discretion.
(g) Without in any way limiting the obligations of the Company, or the
rights of the Trustee to require the prompt payment in full of the
Pledged Note in accordance with the terms of such Pledged Note (and
without resorting to this Agreement), the Company agrees that if the
proceeds of sale, collection or other realization of or upon the
Collateral are insufficient to cover the costs and expenses of such
realization and the payment in full of the Pledged Note, the Company
shall remain liable for any deficiency.
(h) The Trustee shall incur no liability as a result of the sale of the
Collateral, or any part thereof, at any private sale. The Company
hereby waives, to the extent permitted by applicable law, any claims
against the Trustee arising by reason of the fact that the price at
which the Collateral, or any part thereof, may have been sold at such
a private sale was less than the price which might have been obtained
at a public sale, or was less than the aggregate amount of the Pledged
Note. 8. Termination. This Agreement and the pledge and liens on the
Collateral created hereby shall terminate upon the earlier to occur of
(i) the date when all of the Secured Obligations have been paid and
finally discharged in full in cash and (ii) the consummation of a
sale(s) or disposition(s) of the Pledged Note in accordance with
Section 3(a) of this Agreement and application of the proceeds of such
sale(s) and disposition(s) in accordance with Section 3(i); provided
however, that in no event shall this Agreement terminate prior to the
full satisfaction of all costs and expenses of the Trustee. Upon
termination as aforesaid, the Trustee shall execute and deliver such
releases and discharges as the Company may reasonably request. 9.
Reinstatement. Notwithstanding the provisions of section 8 to the
contrary and notwithstanding anything else to the contrary contained
herein, this Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by
any of the Secured Parties in respect of the Collateral or the Secured
Obligations is rescinded, or must otherwise be restored or returned by
the Secured Parties upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the issuer of the Pledged Note, any
guarantor thereof, the Company or any of its affiliates or any
guarantor of all or any part of the Secured Obligations, or upon the
appointment of any intervenor, receiver or conservator of, or trustee
or similar official for, the issuer of the Pledged Note, any guarantor
thereof, the Company or any such affiliate or guarantor, or any
substantial part of their respective properties or assets, or
otherwise, all as though such payment had not been made.
10. Consents, Approvals, etc. Upon the exercise by the Secured Parties of
any power, right, privilege or remedy pursuant to this Agreement or any of the
other Operative Documents which requires any consent, approval, registration,
qualification or authorization of, or declaration or filing with, or other
action by, any other Person, including, without limitation, any governmental
authority or instrumentality, the Company will execute and deliver, or will
cause the execution and delivery of, all such agreements, documents,
applications, certificates, instruments and other documents and papers and will
take, or will cause to be taken, such other action that may be required to
obtain such consent, approval, registration, qualification or authorization of
or other action by such other Person and/or that may be reasonably requested by
the Secured Parties in connection therewith.
11. Amendments. All amendments of this Agreement and all waivers of compliance
herewith shall be in writing and shall only be effected with the written consent
of the Trustee and the Majority Noteholders in accordance with Article Nine and
Section 2.10 of the Indenture.
12. Communications. All communications provided for herein shall be personally
delivered, or sent by recognized overnight delivery service, or via facsimile,
to the respective addresses or facsimile numbers for the Company and the Trustee
specified in the Indenture, and, if to the Majority Noteholders, to the address
or facsimile number specified below their names on the signature page hereto.
Notices and other communications shall be effective upon receipt.
13. Successors and Assigns. This Agreement shall bind and inure to the benefit
of and be enforceable by the Secured Parties and the Company, successors to the
Company and the successors and assigns of the Secured Parties, and, in addition,
shall inure to the benefit of and be enforceable by each holder from time to
time of any of the Secured Notes who, upon acceptance of any such Secured Notes,
shall, without further action, be entitled to enforce the provisions and enjoy
the benefits hereof and thereof, whether or not an express assignment to such
holder of rights hereunder and thereunder has been made.
14. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement, including
the validity hereof and the rights and obligations of the parties hereunder, and
all amendments and supplements hereof and all waivers and consents hereunder,
shall be construed in accordance with and governed by the domestic substantive
laws of the State of New York without giving effect to any choice of law or
conflicts of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction. The Company, to the extent
that it may lawfully do so, hereby consents to service of process, and to be
sued, in the State of New York and consents to the jurisdiction of the courts of
the State of New York and the United States District Court for the Southern
District of New York, as well as to the jurisdiction of all courts to which an
appeal may be taken from such courts, for the purpose of any suit, action or
other proceeding arising out of any of its obligations hereunder or with respect
to the transactions contemplated hereby, and expressly waives any and all
objections it may have as to venue in any such courts. The Company further
agrees that a summons and complaint commencing an action or proceeding in any of
such courts shall be properly served and shall confer personal jurisdiction if
served in accordance with section 12 or as otherwise provided under the laws of
the State of New York. Notwithstanding the foregoing, the Company agrees that
nothing contained in this Section 14 shall preclude the institution of any such
suit, action or other proceeding in any jurisdiction other than the State of New
York.
15. Miscellaneous. The headings in this Agreement are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof. This Agreement
(together with the Indenture and the Secured Notes) embodies the entire
agreement and understanding between the Secured Parties and the Company and
supersedes all prior agreements and understandings relating to the subject
matter hereof. In case any provision in this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof and thereof shall not in any way be affected or impaired
thereby. This Agreement may be executed in any number of counterparts and by the
parties hereto on separate counterparts but all such counterparts shall together
constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Company has executed this Agreement as
of the date first above written.
W.R. CARPENTER NORTH AMERICA, INC.
By: /s/ Graham R. Croot
Title: Chief Financial Officer
U.S. TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: Sandee Parks
Title: Vice President
<PAGE>
<PAGE>
Exhibit 3(b)
Places of Business
Names
none
--------
" The CUSIP number appearing herein has been included solely
for the convenience of the holders of the Notes. U.S. Trust Company,
National Association assumes no responsibility for the selection or use
of such CUSIP number and makes no representation as to the correctness
of the CUSIP number listed above or printed on the Notes.
