<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1998
COMMISSION FILE NUMBER: 333-50437
APCOA/STANDARD PARKING, INC. *
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 16-1171179
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
900 N. MICHIGAN AVENUE, (312) 274-2000
CHICAGO, ILLINOIS 60611-1542 (Registrant's Telephone Number,
(Address of Principal Executive Offices) Including Area Code)
Former name, address and fiscal year, if changed since last report:
800 Superior Avenue, Cleveland, Ohio 44114-2601
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
*TABLE OF ADDITIONAL REGISTRANTS
<TABLE>
<CAPTION>
STATE OR OTHER
JURISDICTION OF I.R.S. EMPLOYER
INCORPORATION OR IDENTIFICATION
NAME, ADDRESS AND TELEPHONE NUMBER (1) ORGANIZATION NUMBER
- - ---------------------------------- ------------------- ----------------
<S> <C> <C>
Tower Parking, Inc. ........................................................ Ohio 31-0878291
Graelic, Inc. .............................................................. Ohio 34-1327948
APCOA Capital Corporation.................................................... Delaware 06-1334158
A-1 Auto Park, Inc. ........................................................ Georgia 58-1336837
Metropolitan Parking System, Inc............................................. Massachusetts 04-2607263
Events Parking Company, Inc.................................................. Massachusetts 04-3223993
Standard Parking Corporation................................................. Illinois 36-2932936
Standard Parking Corporation IL.............................................. Illinois 36-3880811
Standard Auto Park, Inc. ................................................... Illinois 36-2439841
S&S Parking, Inc............................................................. California 95-3400582
Century Parking, Inc. ...................................................... California 95-2548427
Sentry Parking Corporation................................................... California 95-2950548
</TABLE>
The address and telephone number of these additional registrants is the same as
that of APCOA/Standard Parking, Inc.
<PAGE> 2
APCOA/STANDARD PARKING, INC.
FORM 10-Q INDEX
<TABLE>
<CAPTION>
<S> <C> <C>
Part I. Financial Information
Item 1. Financial Statements (Unaudited):
Condensed Consolidated Balance Sheets as of September 30, 1998
and December 31, 1997...............................................................................3
Condensed Consolidated Statements of Operations for the three and
nine months ended September 30, 1998 and September 30, 1997.........................................4
Condensed Consolidated Statements of Cash Flows for the nine
months ended September 30, 1998 and September 30, 1997..............................................5
Notes to Condensed Consolidated Financial Statements................................................6
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations..............11
Item 3. Quantitative and Qualitative Disclosures About Market Risk.........................................19
Part II. Other Information
Item 1. Legal Proceedings..................................................................................19
Item 2. Changes in Securities and Use of Proceeds..........................................................19
Item 3. Defaults upon Senior Securities....................................................................19
Item 4. Submission of Matters to a Vote of Security Holders................................................19
Item 5. Other Information..................................................................................19
Item 6. Exhibits and Reports on Form 8-K...................................................................19
Signatures.........................................................................................................20
Exhibits...........................................................................................................21
</TABLE>
2
<PAGE> 3
PART I FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
APCOA/STANDARD PARKING, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT FOR SHARE DATA)
<TABLE>
<CAPTION>
SEPTEMBER 30, 1998 DECEMBER 31, 1997
------------------ -----------------
ASSETS (UNAUDITED)
<S> <C> <C>
Current assets:
Cash and cash equivalents.................................... $ 18,616 $ 3,322
Notes and accounts receivable, net........................... 29,509 13,806
Prepaid expenses and supplies................................ 2,290 1,126
--------- --------
Total current assets............................................ 50,415 18,254
Leaseholds and equipment, net................................... 25,057 12,340
Intangible assets, net.......................................... 121,824 22,470
Other assets.................................................... 6,243 6,031
--------- --------
Total assets................................................. $ 203,539 $ 59,095
========= ========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable............................................. $ 13,897 $ 16,401
Accrued and other current liabilities........................ 29,775 14,810
Current portion of long-term borrowings...................... 1,235 4,102
--------- --------
Total current liabilities....................................... 44,907 35,313
Long-term borrowings, excluding current portion................. 148,049 34,181
Other long-term liabilities..................................... 11,727 3,132
Redeemable preferred stock...................................... 43,029 8,728
Common stock subject to put/call rights;
5.01 shares issued and outstanding............................ 4,589 --
Stockholders' deficit:
Common stock, par value $1.00 per share; 1,000 authorized;
26.3 shares issued and outstanding.......................... 1 1
Additional paid-in capital.................................... 11,422 17,205
Accumulated deficit........................................... (60,185) (39,465)
--------- --------
Total stockholders' deficit..................................... (48,762) (22,259)
--------- --------
Total liabilities and stockholders' deficit.................. $ 203,539 $ 59,095
========= ========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
Note: The balance sheet at December 31, 1997 has been derived from the
audited financial statement at that date but does not include all of
the information and footnotes required by generally accepted accounting
principles for complete financial statements.
3
<PAGE> 4
APCOA/STANDARD PARKING, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------------------------- -------------------------------------
SEPTEMBER 30,1998 SEPTEMBER 30, 1997 SEPTEMBER 30, 1998 SEPTEMBER 30, 1997
----------------- ------------------ ------------------ ------------------
<S> <C> <C> <C> <C>
Parking services revenue:
Lease contracts ............................... $ 45,426 $ 25,625 $ 110,727 $ 73,651
Management contracts .......................... 10,532 4,569 24,079 13,692
---------- ------------ ----------- -----------
55,958 30,194 134,806 87,343
Costs and expenses:
Cost of parking services:
Lease contracts ............................ 40,294 21,850 98,446 64,351
Management contracts ....................... 3,473 2,199 8,284 6,799
---------- ------------ ----------- -----------
43,767 24,049 106,730 71,150
General and administrative ................. 7,302 3,530 16,663 9,715
Restructuring charge ....................... -- -- 14,100 --
Depreciation and amortization .............. 1,948 908 4,919 3,122
---------- ------------ ----------- -----------
Total costs and expenses ........................ 53,017 28,487 142,412 83,987
---------- ------------ ----------- -----------
Operating income (loss) ......................... 2,941 1,707 (7,606) 3,356
Interest expense (income):
Interest expense ........................... 3,769 956 8,576 2,755
Interest income ............................ (478) (107) (1,264) (339)
---------- ------------ ----------- -----------
3,291 849 7,312 2,416
---------- ------------ ----------- -----------
Income (loss) before minority interest, income
taxes and extraordinary item ............... (350) 858 (14,918) 940
Minority interest ............................... 144 104 395 234
Income tax expense .............................. 185 66 245 186
---------- ------------ ----------- -----------
Income (loss) before extraordinary item ......... (679) 688 (15,558) 520
Extraordinary loss .............................. -- -- 2,816 --
---------- ------------ ----------- -----------
Net income (loss) ............................... (679) 688 (18,374) 520
Preferred stock dividends ....................... (1,158) (222) (2,346) (666)
---------- ------------ ----------- -----------
Net income (loss) available for common
stockholders .................................... $ (1,837) $ 466 $ (20,720) $ (146)
========== ============ =========== ===========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
4
<PAGE> 5
APCOA/STANDARD PARKING, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS, UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
-------------------------------------------
SEPTEMBER 30, 1998 SEPTEMBER 30, 1997
------------------ ------------------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) .................................... ($18,374) $ 520
Adjustments to reconcile net income (loss) to net cash
used in operations:
Depreciation and amortization ..................... 4,919 3,122
Restructuring charge (non-cash)................... 2,400 --
Change in operating assets and liabilities ........ (10,114) (8,406)
------------- -------------
Net cash used in operating activities ................ (21,169) (4,764)
INVESTING ACTIVITIES:
Businesses acquired, net of cash, and including direct
acquisition costs ................................ (87,648) (478)
Purchase of leaseholds and equipment ................. (4,275) (810)
Purchase of leaseholds and equipment by joint
ventures.......................................... (299) (293)
Increase in other assets ............................. (5,073) (450)
------------- -------------
Net cash used in investing activities ................ (97,295) (2,031)
FINANCING ACTIVITIES:
Proceeds from long-term borrowings ................... 149,456 9,339
Payments on long-term borrowings ..................... (41,801) (659)
Payments on joint venture borrowings ................. (400) (317)
Payments of debt issuance costs ...................... (6,180) --
Proceeds from issuance of preferred stock ............ 40,683 --
Redemption of redeemable preferred stock ............. (8,000) --
------------- -------------
Net cash provided by financing activities ............ 133,758 8,363
Increase in cash and cash equivalents ................ 15,294 1,568
Cash and cash equivalents at beginning of period ..... 3,322 2,532
------------- -------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD ........... $ 18,616 $ 4,100
============= =============
SUPPLEMENTAL DISCLOSURES:
Cash paid during the period for:
Interest .......................................... $ 8,619 $ 2,813
Taxes ............................................. 219 186
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
5
<PAGE> 6
APCOA/STANDARD PARKING, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998
(IN THOUSANDS, UNAUDITED)
1. INTERIM FINANCIAL DATA
The accompanying unaudited condensed consolidated financial statements
of APCOA/Standard Parking, Inc., ("APCOA/Standard" or "the Company"), formerly
APCOA, Inc. ("APCOA"), have been prepared in accordance with generally accepted
accounting principles for interim financial information and the instructions to
Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all
of the information and notes required by generally accepted accounting
principles for complete financial statements.
In the opinion of management, all adjustments (consisting only of
adjustments of a normal and recurring nature) considered necessary for a fair
presentation of the financial position and results of operations have been
included. Operating results for the nine-month period ended September 30, 1998
are not necessarily indicative of the results that might be expected for the
fiscal year ending December 31, 1998. The financial statements presented in this
Report should be read in conjunction with the consolidated financial statements
and footnotes thereto included in APCOA/Standard's Registration Statement on
Form S-4 No. 333-50437 effective August 14, 1998.
Certain reclassifications have been made to the 1997 financial
information to conform to the 1998 presentation.
2. ACQUISITIONS
In January 1998, APCOA entered into a definitive Combination Agreement
to acquire all of the outstanding capital stock, partnership and other equity
interests of Standard Parking Corporation and certain affiliates ("Standard").
On March 30, 1998, APCOA acquired Standard for consideration consisting of $65
million in cash, 16% of the common stock of APCOA outstanding as of January 15,
1998 and the assumption of certain liabilities, including a $5.0 million
consulting and non-compete obligation for one of the former owners of Standard,
which represents the current value of the payments to be made, as determined by
consulting actuaries. In addition, on March 30, 1998, APCOA paid to the Standard
owners $2.8 million, generally representing Standard's earnings through the date
of the acquisition and Standard's cash on hand at such time. Financing of the
acquisition included a contribution from AP Holdings, Inc., the parent company
of APCOA, of $40,683, in exchange for redeemable preferred stock, and other
transactions as described below and in Note 4.
The acquisition has been accounted for under the purchase method;
accordingly, its results are included in the consolidated financial statements
of APCOA/Standard from the date of acquisition. Following is the preliminary
purchase price allocation (the final purchase price allocation will be based on
a final determination of the fair value of assets acquired and liabilities
assumed). Management believes that the final allocation of the purchase price
will not materially differ from the preliminary estimated amounts.
<TABLE>
<CAPTION>
<S> <C>
Cash consideration............................................................. $ 65,000
5.01 shares of common stock issued, at calculated put/call value............... 4,589
Closing distribution to the Standard owners.................................... 2,822
Consulting and non-compete agreement with former owner......................... 5,000
Direct acquisition costs....................................................... 5,219
--------
Total purchase price........................................................... $ 82,630
========
Cash........................................................................... $ 1,711
Notes and accounts receivable.................................................. 2,687
Prepaid expenses............................................................... 150
Leaseholds and equipment....................................................... 7,971
Consulting and non-compete agreement........................................... 5,000
Cost in excess of net assets acquired.......................................... 69,162
Other assets................................................................... 991
Accounts payable and accrued expenses.......................................... (1,872)
Restructuring reserves ($1.6 million cash, $0.4 million non-cash).............. (2,000)
Other liabilities.............................................................. (1,170)
--------
$ 82,630
========
</TABLE>
6
<PAGE> 7
APCOA/STANDARD PARKING, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
The put/call value is based primarily upon a multiple of EBITDA of the
Company. Direct acquisition costs incurred in connection with the acquisition
include investment banking fees of $3,289 and legal and other professional fees
of $1,930.
The restructuring reserves represent the estimated costs to integrate
existing information and operating systems of Standard in connection with the
Company's business plan. These costs include software modifications of $868,
re-branding costs of $510 and estimated severance costs of $622.
The following unaudited pro forma results of operations for the nine
months ended September 30, 1998 and 1997, assume the acquisition of Standard and
related transactions occurred at the beginning of each period presented:
<TABLE>
<CAPTION>
Nine Months Ended
September 30, 1998 September 30, 1997
------------------------- -------------------------
<S> <C> <C>
Net revenue................................... $149,365 $126,934
Loss before extraordinary item................ (15,647) (3,226)
</TABLE>
This pro forma information does not purport to be indicative of the
results that actually would have been obtained if the combination had taken
place at the beginning of the periods presented and is not intended to be a
projection of future results.
On January 22, 1998, the Company acquired the assets of Huger Parking
Company, LLC, d/b/a Dixie Parking, for $4.2 million. On May 1, 1998, the Company
acquired the remaining 76% interest in Executive Parking Industries LLC, through
the acquisition of all of the outstanding capital stock of S&S Parking, Inc.,
the sole asset of which was such 76% interest in EPI, for $7.0 million in cash.
In addition, on June 1, 1998, APCOA/Standard acquired all of the outstanding
capital stock of Century Parking, Inc., and Sentry Parking Corporation, for $5.2
million in cash at closing and $1.0 million payable on the third anniversary of
the closing date. On September 1, 1998, APCOA/Standard acquired the operations
of Virginia Parking Service, Inc. in a stock purchase transaction for $2.7
million in cash, subject to adjustment, including direct costs and up to $1.25
million in notes payable over five years with interest at the prime rate. These
acquisitions have been accounted for under the purchase method. The historical
operating results of the businesses were not material to the consolidated
results of APCOA/Standard.
3. RESTRUCTURING CHARGE
During the first quarter of 1998, management performed an analysis of
the costs associated with implementing the business plan of consolidating the
Company's headquarters in Chicago and costs related to Company staff reductions.
Included in the "restructuring charge" in the accompanying condensed
consolidated statement of operations for the nine months ended September 30,
1998 are the following (expenses are cash unless otherwise stated):
<TABLE>
<CAPTION>
<S> <C>
Employee severance costs............................................................ $ 5,400
Employee relocation costs........................................................... 5,000
Impairment of assets that will no longer be used (non-cash expense)................. 2,400
Other restructuring costs........................................................... 1,300
---------
$ 14,100
=========
</TABLE>
The $5.4 million of employee severance costs consists of cash
compensation to 54 people. The $5.0 million of employee relocation costs are in
connection with the relocation and consolidation of the headquarters of the
Company, the relocation of two major field offices, moving Cleveland
headquarters staff members to Chicago and other relocations within the field
organization. The impairment of assets that will no longer be used refers to the
write-off of $2.4 million of capitalized organization and software development
costs. The $1.3 million of other restructuring costs consists largely of a $1.0
million increase in insurance reserves resulting from a planned buyout of the
insurance program of APCOA in connection with the combination of APCOA and
Standard insurance programs.
7
<PAGE> 8
APCOA/STANDARD PARKING, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
Of the $11.7 million cash restructuring costs identified above, $4.1
million was disbursed during the third quarter of 1998 and $7.9 million has been
disbursed to date. It is expected that substantially all actions related to the
restructuring will be completed by early 1999 and the remaining cash component
of the restructuring charge will be disbursed by the middle of 1999.
4. LONG-TERM DEBT
In connection with the Standard acquisition, on March 30, 1998, the
Company issued $140 million principal amount of 9 1/4% Senior Subordinated Notes
due 2008 in a Rule 144A private placement, and entered into a $40 million senior
credit facility. The net proceeds from the offering and the preferred stock
contribution described in Note 2 above were used by the Company to fund the cash
portion of the consideration for the acquisition of Standard, to repay certain
existing debt of APCOA and Standard, for general corporate purposes and to
redeem preferred stock held by an affiliate.
In connection with the early extinguishment of debt in March 1998, the
Company recorded an extraordinary loss of $2,816. The extraordinary loss
represents the unamortized balance of debt issuance costs related to APCOA's
previous credit agreement of $727 and a prepayment penalty of $2,089 related to
APCOA's previous credit agreement.
Effective September 14, 1998, APCOA/Standard completed an offer to
exchange all the outstanding Senior Subordinated Notes due March 15, 2008 for
New Notes with substantially identical terms that are registered under the
Securities Act of 1933.
5. STOCKHOLDERS' EQUITY (DEFICIT)
Following is a summary of transactions affecting stockholders' equity
(deficit) for the nine months ended September 30, 1998:
<TABLE>
<CAPTION>
Common Stock
-----------------------------
Number Of Additional Accumulated
Shares Par Value Paid-In Capital Deficit Total
----------- --------- --------------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Balance (deficit) at January 1, 1998...... 26.3 $1 $17,205 ($39,465) ($22,259)
Net loss for the nine months ended
September 30, 1998.................... (18,374) (18,374)
Preferred stock dividends................. (2,346) (2,346)
Non-cash distribution to affiliate........ (6,511) (6,511)
Contribution to capital................... 728 728
---- --- ------- ----------- --------
Balance (deficit) at September 30, 1998... 26.3 $1 $11,422 ($60,185) ($48,762)
==== === ======= =========== ========
</TABLE>
On August 4, 1998, AP Holdings, Inc., the parent of the Company,
repurchased 10% of its common stock outstanding and all warrants to purchase
additional common stock held by a minority investor for $4.0 million in cash.
This transaction was entered into pursuant to a put/call agreement dated April
1989. The repurchase was funded by an inter-company loan from the Company.
6. SUBSIDIARY GUARANTORS
All of the Company's direct or indirect wholly owned domestic
subsidiaries, including Standard, other than inactive subsidiaries, fully,
unconditionally, jointly and severally guarantee the Senior Subordinated Notes.
Separate financial statements of the guarantor subsidiaries are not separately
presented because, in the opinion of management, such financial statements are
not material to investors. The non-guarantor subsidiaries include joint
ventures, wholly owned subsidiaries of the Company organized under the laws of
foreign jurisdictions and inactive subsidiaries, all of which are included in
the consolidated financial statements. The following is summarized combining
financial information for the Company, the guarantor subsidiaries of the Company
and the non-guarantor subsidiaries of the Company:
8
<PAGE> 9
APCOA/STANDARD PARKING, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
APCOA SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
- - -------------------
SEPTEMBER 30, 1998
Cash and cash equivalents ................. $ 11,310 $ 6,235 $ 1,071 $ -- $ 18,616
Notes and accounts receivable ............. 23,102 5,228 1,179 -- 29,509
Current assets ............................ 35,576 12,293 2,546 -- 50,415
Leaseholds and equipment, net ............. 9,062 10,521 5,474 -- 25,057
Cost in excess of net assets acquired, net 24,098 84,632 819 -- 109,549
Investment in subsidiaries ................ 111,328 -- -- (111,328) --
Total assets .............................. 188,019 116,122 10,726 (111,328) 203,539
Accounts payable .......................... 6,311 4,700 2,886 -- 13,897
Current liabilities ....................... 26,225 11,609 7,073 -- 44,907
Long-term borrowings, excluding current
portion ................................... 142,791 115 5,143 -- 148,049
Redeemable preferred stock ................ 43,029 -- -- -- 43,029
Common stock subject to put/call rights ... 4,589 -- -- -- 4,589
Total stockholders' equity (deficit) ...... (37,936) 102,944 (2,442) (111,328) (48,762)
Total liabilities and stockholders' equity
(deficit) ................................. 188,019 116,122 10,726 (111,328) 203,539
DECEMBER 31, 1997
Cash and cash equivalents ................. $ 1,255 $ 1,019 $ 1,048 $ -- $ 3,322
Notes and accounts receivable ............. 10,587 326 2,893 -- 13,806
Current assets ............................ 12,801 1,292 4,161 -- 18,254
Leaseholds and equipment, net ............. 6,246 227 5,867 -- 12,340
Cost in excess of net assets acquired, net 16,190 1,432 835 -- 18,457
Investment in subsidiaries ................ 3,652 -- -- (3,652) --
Total assets .............................. 46,000 3,477 13,270 (3,652) 59,095
Accounts payable .......................... 13,574 1,756 1,071 -- 16,401
Current liabilities ....................... 26,593 2,178 6,542 -- 35,313
Long-term borrowings, excluding current
portion.................................... 28,747 -- 5,434 -- 34,181
Redeemable preferred stock ................ 8,728 -- -- -- 8,728
Total stockholders' equity (deficit) ...... (20,229) 1,219 403 (3,652) (22,259)
Total liabilities and stockholders' equity
(deficit) ................................. 46,000 3,477 13,270 (3,652) 59,095
INCOME STATEMENT DATA:
- - ----------------------
THREE MONTHS ENDED SEPTEMBER 30, 1998
Parking Revenue ........................... $ 22,341 $ 25,456 $ 8,161 $ -- $ 55,958
Gross profit .............................. 5,279 6,649 263 -- 12,191
Depreciation and amortization ............. 857 841 250 -- 1,948
Operating income .......................... 181 3,334 (574) -- 2,941
Interest expense (income), net ............ 3,139 (1) 153 -- 3,291
Equity in earnings of subsidiaries ........ (2,510) -- -- 2,510 --
Net income (loss) ......................... (679) 3,330 (820) (2,510) (679)
THREE MONTHS ENDED SEPTEMBER 30, 1997
Parking Revenue ........................... $ 20,795 $ 1,038 $ 8,361 $ -- $ 30,194
Gross profit .............................. 4,773 368 1,004 -- 6,145
Depreciation and amortization ............. 655 18 235 -- 908
Operating income .......................... 1,169 243 295 -- 1,707
Interest expense (income), net ............ 705 -- 144 -- 849
Equity in earnings of subsidiaries ........ (284) -- -- 284 --
Net income (loss) ......................... 688 243 41 (284) 688
NINE MONTHS ENDED SEPTEMBER 30, 1998
Parking Revenue ........................... $ 61,156 $ 45,919 $ 27,731 $ -- $ 134,806
Gross profit .............................. 13,970 12,089 2,017 -- 28,076
Depreciation and amortization ............. 2,457 1,681 781 -- 4,919
Restructuring charge ...................... 14,100 -- -- -- 14,100
Operating income .......................... (13,787) 6,358 (177) -- (7,606)
Interest expense (income), net ............ 6,843 (11) 480 -- 7,312
Equity in earnings of subsidiaries ........ (5,365) -- -- 5,365 --
Net income (loss) ......................... (18,375) 6,364 (998) (5,365) (18,374)
</TABLE>
9
<PAGE> 10
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
NINE MONTHS ENDED SEPTEMBER 30, 1997
Parking Revenue .................................. $ 59,479 $ 2,114 $ 25,750 $ -- $ 87,343
Gross profit ..................................... 13,018 486 2,689 -- 16,193
Depreciation and amortization .................... 2,454 48 620 -- 3,122
Operating income ................................. 2,527 124 705 -- 3,356
Interest expense (income), net ................... 1,971 -- 445 -- 2,416
Equity in earnings of subsidiaries ............... (145) -- -- 145 --
Net income (loss) ................................ 520 124 21 (145) 520
STATEMENT OF CASH FLOW DATA:
NINE MONTHS ENDED SEPTEMBER 30, 1998
Net cash provided by (used in) operating
activities ....................................... $ (24,031) $ 2,140 $ 722 $ -- $ (21,169)
Investing activities:
Purchase of leaseholds and equipment ........... (2,902) (1,373) -- -- (4,275)
Purchase of leaseholds and equipment by
joint ventures ................................. -- -- (299) -- (299)
Businesses acquired ............................ (92,097) 4,449 -- -- (87,648)
Other .......................................... (5,073) -- -- (5,073)
Net cash provided by (used in) investing
activities ....................................... (100,072) 3,076 (299) -- (97,295)
Financing activities:
Proceeds from long-term borrowings ............. 149,456 -- -- -- 149,456
Payments on long-term borrowings ............... (41,801) -- -- -- (41,801)
Payments of debt issuance costs ................ (6,180) -- -- -- (6,180)
Payment on joint venture debt .................. -- (400) -- (400)
Proceeds from issuance of preferred stock ...... 40,683 -- -- -- 40,683
Redemption of redeemable preferred stock ....... (8,000) -- -- -- (8,000)
Net cash provided by (used in) financing
activities ....................................... 134,158 -- (400) -- 133,758
NINE MONTHS ENDED SEPTEMBER 30, 1997
Net cash provided by (used in) operating
activities ....................................... $ (7,325) $ 1,355 $ 1,206 $ -- $ (4,764)
Investing activities:
Purchase of leaseholds and equipment ........... (580) (230) -- -- (810)
Purchase of leaseholds and equipment by
joint ventures ................................. -- -- (293) -- (293)
Businesses acquired ............................ (478) -- -- -- (478)
Other .......................................... (450) -- -- -- (450)
Net cash used in investing activities ............ (1,508) (230) (293) -- (2,031)
Proceeds from long-term borrowings ............. 9,339 -- -- -- 9,339
Payments on long-term borrowings ............... (659) -- -- -- (659)
Payments on joint venture borrowings............ -- -- (317) -- (317)
Net cash provided by (used in) financing
activities ....................................... 8,680 -- (317) -- 8,363
</TABLE>
10
<PAGE> 11
PART I FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL
APCOA/Standard Parking, Inc. ("APCOA/Standard" or "the Company")
operates parking facilities under two types of arrangements: management
contracts and leases. APCOA/Standard does not own any parking facilities and, as
a result, APCOA/Standard assumes few of the risks of real estate ownership.
Under a management contract, APCOA/Standard typically receives a base monthly
fee for managing the property, and may also receive an incentive fee based on
the achievement of facility revenues above a base amount. In some instances,
APCOA/Standard also receives certain fees for ancillary services. Typically, all
of the underlying revenues, expenses and capital expenditures under a management
contract flow through to the property owner, not to APCOA/Standard. Under lease
arrangements, APCOA/Standard generally pays to the property owner either a fixed
annual rental, a percentage of gross customer collections or a combination
thereof. APCOA/Standard collects all revenues under lease arrangements and is
responsible for most operating expenses, but it is typically not responsible for
major maintenance or capital expenditures. As of September 30, 1998,
APCOA/Standard operated approximately 72% of its approximately 1,457 parking
facilities under management contracts and approximately 28% under leases.
Parking services revenue--leases. Lease parking services revenues
consist of all gross customer collections received at a leased facility.
Parking services revenue--management contracts. Management contract
revenues consist of management fees, including both fixed and revenue-based, and
fees for ancillary services such as accounting, equipment leasing, consulting,
and other value-added services with respect to managed locations, but exclude
gross customer collections at such locations. Management contracts generally
provide APCOA/Standard a management fee regardless of the operating performance
of the underlying facility.
Cost of parking services--leases. Cost of parking services under lease
arrangements consist of (i) contractual rental fees paid to the facility owner
and (ii) all operating expenses incurred in connection with operating the leased
facility. Contractual fees paid to the facility owner are based on either a
fixed contractual amount or a percentage of gross revenue, or a combination
thereof. Generally under a lease arrangement, APCOA/Standard is not responsible
for major capital expenditures or property taxes.
Cost of parking services--management contracts. Cost of parking
services under management contracts is generally passed through to the facility
owner, therefore these costs are not included in the results of operations of
the Company, Several APCOA/Standard contracts, however, require APCOA/Standard
to pay for certain costs that are offset by larger management fees. These
contracts tend to be large airport properties with high cost structures.
General and administrative expenses. General and administrative
expenses include primarily salaries, wages, travel and office related expenses
for the headquarters and field office and supervisory employees.
11
<PAGE> 12
SUMMARY OF OPERATING FACILITIES
The following table reflects the Company's facilities at the end of the
periods indicated taking into consideration the combination with Standard
Parking Corporation and affiliates ("Standard") on a pro forma basis:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1998 DECEMBER 31, 1997 SEPTEMBER 30, 1997
------------------ ----------------- ------------------
MANAGED FACILITIES:
<S> <C> <C> <C>
APCOA/Standard Parking................. 675 607 553
Other Acquisitions..................... 371 187 55
------------------ ----------------- ------------------
Combined............................... 1,046 794 608
LEASED FACILITIES:
APCOA/Standard Parking................. 264 262 266
Other Acquisitions..................... 147 46 25
------------------ ----------------- ------------------
Combined............................... 411 308 291
------------------ ----------------- ------------------
TOTAL FACILITIES....................... 1,457 1,102 899
================== ================= ==================
</TABLE>
The Company's strategy is to add locations in core cities where a
concentration of locations improves customer service levels and operating
margins. In general, contracts added as set forth in the table above followed
this strategy.
RESULTS OF OPERATIONS
Gross customer collections consist of gross receipts collected at all
leased and managed properties, including unconsolidated affiliates. Gross
customer collections increased $169.6 million, or 131.4%, to $298.7 million in
the third quarter of 1998 compared to $129.1 million in the third quarter of
1997. This increase is attributable $139.5 million to the combination with
Standard and $30.1 million to the addition of other locations during the period.
Gross customer collections increased $364.9 million, or 103.8% to $716.4 million
in the first nine months of 1998 compared to $351.5 million in the first nine
months of 1997. This increase is attributable $285.9 million to the combination
with Standard and $79.0 million to the addition of other locations during the
period.
In analyzing gross margins of APCOA/Standard, it should be noted that
the cost of parking services in connection with the provision of management
services is generally paid by the clients. Margins for lease arrangements are
significantly impacted by variables other than operating performance, such as
variability in parking rates in different cities and widely varying space
utilization by parking facility type.
The following should be read in conjunction with the Condensed
Consolidated Financial Statements and notes thereto in Item 1.
THREE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 1997
Parking services revenue--leases. Lease revenue increased $19.8
million, or 77.3%, to $45.4 million in the third quarter of 1998 as compared to
$25.6 million in the third quarter of 1997. This increase was driven by revenue
from acquired leases of $19.1 million and core business growth of $0.7 million.
Parking services revenue--management contracts. Management contract
revenue increased $5.9 million, or 130.5%, to $10.5 million in the third quarter
of 1998 as compared to $4.6 million in the third quarter of 1997. Of this
increase, $4.9 million resulted from acquired management contracts. The
remaining $1.0 million increase resulted from management fees at new locations
added subsequent to September 30, 1997 through internal growth, and increases at
existing locations.
Cost of parking service--leases. Cost of parking for leases increased
$18.4 million, or 84.4%, to $40.3 million in the third quarter of 1998 from
$21.9 million in the third quarter of 1997. This increase resulted $18.0 million
from acquired leases and $0.4 million from expense growth at existing locations,
primarily attributable to percentage rent paid on incremental revenue. Gross
margin for leases declined to 11.3% for the third quarter of 1998 compared to
14.7% for the third quarter of 1997. This reduction was caused by the average
gross margin on acquired leases being lower than that of existing leases.
Cost of parking services--management contracts. Cost of parking for
management contracts increased by $1.3
12
<PAGE> 13
million, or 57.9%, to $3.5 million in the third quarter of 1998 from $2.2
million in the third quarter of 1997. This increase resulted $0.8 million from
acquired management contracts and $0.5 million from expense growth at existing
locations. During the same period, however, gross margin for management
contracts improved to 67.0% compared to 51.9% in the third quarter of 1997. This
improvement in margin results from the relative mix of locations that were added
compared to those already in the contract portfolio. Most new locations do not
carry any cost of parking since all of these costs are paid by the clients while
some of the existing management contracts do carry some costs.
General and administrative expenses. General and administrative costs
increased $3.8 million, or 106.9%, to $7.3 million for the third quarter of 1998
as compared to $3.5 million for the third quarter of 1997. This increase results
primarily from administrative costs associated with the acquired companies and
inflation.
Other income and expenses. Interest expense, net of interest income,
totaled $3.3 million in the third quarter of 1998, an increase of $2.4 million
over the third quarter of 1997. This increase resulted from the debt financing
incurred in connection with the combination with Standard in March 1998,
partially offset by the resulting interest earned on excess cash balances.
Minority interest expense for the third quarter of 1998 totaled $0.1 million
while income taxes were $0.2 million, compared to $0.1 million and $0.1 million,
respectively, for the same period of the prior year. Income taxes consist
primarily of state and local income taxes, because the Company continues to
benefit from significant net operating loss carry-forwards for federal income
tax purposes.
NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30,
1997
Parking services revenue--leases. Lease revenue increased $37.0
million, or 50.3%, to $110.7 million in the nine month period ended September
30, 1998 as compared to $73.7 million in the year-ago period. This increase was
driven by revenue from acquired leases of $34.5 million and core business growth
of $4.5 million, partially offset by two terminated leases of $2.0 million.
Parking services revenue--management contracts. Management contract
revenue increased $10.4 million, or 75.9%, to $24.1 million in the first nine
months of 1998 as compared to $13.7 million in the first nine months of 1997.
This increase resulted $8.6 million from the impact of acquired management
contracts. The remaining $1.8 million increase results from management fees at
new locations added subsequent to September 30, 1997 through internal growth,
and modest increases at existing locations.
Cost of parking services--leases. Cost of parking for leases increased
$34.1 million, or 53.0%, to $98.4 million for the first nine months of 1998 from
$64.3 million in the same period of 1997. This increase resulted $31.9 million
from acquired leases, savings of $1.8 million from terminated leases and $4.0
million from expense growth at existing locations primarily attributable to
percentage rent paid on incremental revenue. Gross margin for leases declined to
11.1% for the nine-month period compared to 12.6% for the first nine months of
1997. This decline resulted from the average gross margin on acquired leases
being lower, which drove down the average lease gross margin.
Cost of parking services--management contracts. Cost of parking for
management contracts increased by $1.5 million, or 21.8%, to $8.3 million in the
first nine months of 1998 from $6.8 million in the first nine months of 1997.
This increase resulted $0.8 million from acquired contracts and $0.7 million
from expense growth at existing locations. Gross margin for management
contracts, however, improved to 65.6% in the current nine-month period compared
to 50.3% for the first nine months of 1997. As noted above, this improvement
results from the relative mix of locations that were added compared to those
already in the contract portfolio. Most new locations do not carry any cost of
parking since all of these costs are paid by the clients while some of the
existing management contracts do carry some costs.
General and administrative expenses. General and administrative costs
increased $7.0 million, or 71.5%, to $16.7 million for the first nine months of
1998 as compared to $9.7 million for the first nine months of 1997. This
increase resulted primarily from costs associated with the acquired companies
and inflation.
Restructuring charge. The Company took a $14.1 million restructuring
charge in the first quarter of 1998 in connection with the combination with
Standard, which was based upon an analysis of the costs associated with
implementing the business plan of consolidating the Company's headquarters in
Chicago, consolidating the Company's field operations, and costs related to
APCOA staff reductions. The charge included (A) $5.0 million of relocation costs
in connection with the headquarters relocation of the Company, the relocation of
two major field offices, moving Cleveland headquarters staff members to Chicago
and other relocations within the field organization, (B) $5.4 million in
severance costs consisting of cash compensation to 54 people, (C) the write-off
of $2.4 million of assets that will no longer be used in the business consisting
of $0.7 million of capitalized assets which were abandoned as a result of the
combination with Standard and $1.7 million of software development costs and (D)
$1.3 million of other restructuring costs, the largest component of which was a
$1.0 million increase in insurance reserves resulting from a planned buyout of
the insurance program of APCOA in connection with the combination of the APCOA
and Standard insurance programs. Of the $11.7 million cash component of this
13
<PAGE> 14
restructuring charge, $7.9 million has been disbursed to date and the balance is
expected to be disbursed by the middle of 1999.
Other income and expenses. Interest expense, net of interest income,
totaled $7.3 million in the nine months ended September 30, 1998, up $4.9
million from the same period of 1997, as a result of debt financing incurred in
connection with the combination with Standard and other acquisitions. Earnings
for the nine month period include an extraordinary loss recorded in the first
quarter of $2.8 million. This loss is comprised of $2.1 million from a
prepayment penalty for early extinguishment of debt and $0.7 million from a
write-off of the unamortized balance of deferred financing costs associated with
the extinguished debt. Minority interest expense for the first nine months of
1998 totaled $0.4 million, compared to $0.2 million for the year-ago period,
which is reflective of increasing joint venture income. Income taxes for both
the current and the year-ago nine-month period were $0.2 million.
COMPARISON OF RESULTS OF OPERATIONS ON A COMBINED BASIS
The following supplementary information is provided to enhance the analysis of
results of operations. The results presented below represent the combined
historical results of APCOA and Standard for the periods presented, without pro
forma adjustments for the impact of the acquisition of Standard. These combined
results do not purport to represent what the actual results would have been if
the acquisition had occurred at the beginning of 1997.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
------------------------------- -------------------------------
September 30 September 30 September 30 September 30
1998 1997 1998 1997
-------------- -------------- -------------- --------------
(in thousands)
<S> <C> <C> <C> <C>
Parking services revenue:
Lease contracts $45,426 $37,719 $122,772 $106,577
Management contracts 10,532 6,855 26,593 20,357
--------- ------- ---------- ----------
55,958 44,574 149,365 126,934
--------- ------ --------- ----------
Cost of parking services:
Lease contracts 40,294 32,928 109,635 94,239
Management contracts 3,473 2,199 8,284 6,800
--------- -------- ----------- -----------
43,767 35,127 117,919 101,039
-------- ------ --------- ---------
General and administrative expenses 7,302 5,808 18,681 15,085
--------- --------- ---------- ----------
Operating income before depreciation,
amortization and restructuring charges $ 4,889 $ 3,639 $ 12,765 $ 10,810
======== ======== ========= =========
</TABLE>
THREE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO THREE MONTHS ENDED
SEPTEMBER 30, 1997
Parking services revenue--leases. Lease revenue increased $7.7 million,
or 20.4%, to $45.4 million in the third quarter of 1998 as compared to $37.7
million in the third quarter of 1997. This increase was driven by revenue from
acquired leases of $5.8 million and core business growth of $1.9 million.
Parking services revenue--management contracts. Management contract
revenue increased $3.6 million, or 53.6%, to $10.5 million in the third quarter
of 1998 as compared to $6.9 million in the third quarter of 1997. Of this
increase, $1.8 million resulted from acquired management contracts. The
remaining $1.8 million increase resulted from management fees at new
locations added subsequent to September 30, 1997, and increases at existing
locations.
Cost of parking service--leases. Cost of parking for leases increased
$7.4 million, or 22.4%, to $40.3 million in the third quarter of 1998 from $32.9
million in the third quarter of 1997. This increase resulted $5.7 million from
acquired leases and $1.7 million from expense growth at existing locations,
primarily attributable to percentage rent paid on incremental revenue. Gross
margin for leases on a combined basis decreased to 11.3% for the third quarter
of 1998 compared to 12.7% for the third quarter of 1997. This reduction was
caused by the average gross margin on acquired leases being lower than that of
existing leases.
14
<PAGE> 15
Cost of parking services--management contracts. Cost of parking for
management contracts increased by $1.3 million, or 57.9%, to $3.5 million in the
third quarter of 1998 from $2.2 million in the third quarter of 1997. This
increase resulted $0.7 million from acquired contracts and $0.6 million from
expense growth at existing locations. During the same period, however, gross
margin for management contracts decreased to 67.0% compared to 67.9% in the
third quarter of 1997. This change in margin resulted from the relative mix of
locations that were added compared to those already in the contract portfolio.
General and administrative expenses. General and administrative costs
increased $1.5 million, or 25.7%, to $7.3 million for the third quarter of 1998
as compared to $5.8 million for the third quarter of 1997. This increase
resulted from inflation and $1.5 million of additional costs from acquired
contracts, partially offset by savings generated in connection with the
APCOA/Standard combination.
NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30,
1997
Parking services revenue--leases. Lease revenue increased $16.2
million, or 15.2%, to $122.8 million in the nine month period ended September
30, 1998 as compared to $106.6 million in the year-ago period. This increase was
driven by revenue from acquired leases of $8.6 million and core business growth
of $9.6 million, partially offset by two terminated leases of $2.0 million.
Parking services revenue--management contracts. Management contract
revenue increased $6.2 million, or 30.6%, to $26.6 million in the first nine
months of 1998 as compared to $20.4 million in the first nine months of 1997.
This increase resulted $3.0 million from the impact of acquired management
contracts. The remaining $3.2 million increase resulted from management fees at
new locations added subsequent to September 30, 1997, and increases at existing
locations.
Cost of parking services--leases. Cost of parking for leases increased
$15.4 million, or 16.3%, to $109.6 million for the first nine months of 1998
from $94.2 million in the same period of 1997. This increase resulted $8.4
million from acquired leases, savings of $1.8 million from terminated leases and
$8.8 million from expense growth at existing locations primarily attributable to
percentage rent paid on incremental revenue. Gross margin for leases declined to
10.7% for the nine-month period compared to 11.6% for the first nine months of
1997. This decline resulted from the average gross margin on acquired leases
being lower, which drove down the average lease gross margin.
Cost of parking services--management contracts. Cost of parking for
management contracts increased by $1.5 million, or 21.8%, to $8.3 million in the
first nine months of 1998 from $6.8 million in the first nine months of 1997.
This increase resulted $0.8 million from acquired contracts and $0.7 million
from expense growth at existing locations. Gross margin for management
contracts, however, improved to 68.8% in the current nine-month period compared
to 66.6% for the first nine months of 1997. This improvement resulted from the
relative mix of locations that were added compared to those already in the
contract portfolio.
General and administrative expenses. General and administrative costs
increased $3.6 million, or 23.8%, to $18.7 million for the first nine months of
1998 as compared to $15.1 million for the first nine months of 1997. This
increase resulted from inflation and $2.7 million of additional costs from
acquired contracts, partially offset by savings generated in connection with the
APCOA/Standard combination.
15
<PAGE> 16
LIQUIDITY AND CAPITAL RESOURCES
The Company had $5.5 million of working capital at September 30, 1998
as compared to a $17.1 million working capital deficit at December 31, 1997.
This fluctuation resulted primarily from the excess cash that the Company
received pursuant to the debt financing obtained in connection with the
combination with Standard, as well as by a reduction in accounts payable due to
seasonality. The Company had cash and cash equivalents of $18.6 million at
September 30, 1998 compared to $3.3 million at December 31, 1997.
Net cash used in operating activities totaled $21.2 million for the
first nine months of 1998 compared to $4.8 million for the first nine months of
1997. Cash used during the first nine months of 1998 included $7.9 million of
cash restructuring charges, $2.1 million prepayment penalty on early
extinguishment of debt and increases in accounts receivable relating to acquired
contracts of $6.3 million.
Cash used in investing activities totaled $97.3 million in the first
nine months of 1998 compared to $2.0 million in the same period of 1997. The
change was a result of the acquisitions of Standard and Dixie Parking by the
Company in the first quarter of 1998, the acquisitions of Executive Parking and
Century Parking and Sentry Parking in the second quarter, and the acquisition of
Virginia Parking Service in the third quarter of 1998. In addition, the Company
expended $4.3 million in capital purchases in the first nine months of 1998.
Significant capital purchases included the acquisition of a twelve-year lease in
March 1998 and the furnishing and improvement of the Company's combined office
space in Chicago. On August 4, 1998, AP Holdings, Inc., the parent of the
Company, repurchased 10% of its common stock outstanding and all warrants to
purchase additional common stock held by a minority investor for $4.0 million in
cash. This transaction was entered into pursuant to a put/call agreement dated
April 1989. The repurchase was funded by an intercompany loan from the Company.
Cash generated from financing activities totaled $133.8 million in the
first nine months of 1998 compared to $8.4 million for the first nine months of
1997. The 1998 activity included $149.5 million of proceeds from the issuance of
debt, $40.7 million of proceeds from the issuance of preferred stock, $42.2
million in debt repayments and $8.0 million for the redemption of preferred
stock. These transactions were consummated in connection with the combination
with Standard and other acquisitions.
The Company has lease commitments of $51.4 million for fiscal 1998. The
leased properties generate sufficient cash flow to meet the base rent payments.
In connection with the combination with Standard, the Company entered
into a new credit facility for $40.0 million of secured revolving credit.
Borrowings under the credit facility bear interest at variable rates based, at
the Company's option, either on LIBOR, the overnight federal funds rate, or the
bank's base rate. The credit facility contains certain covenants with which the
Company must comply, including restrictions on debt limits relative to EBITDA,
capital expenditures, and other customary requirements.
The Company's primary capital requirements are for working capital,
capital expenditures and debt service. The Company believes that cash flow from
operating activities, cash and cash equivalents and borrowings under the new
credit facility will be adequate to meet the Company's short-term liquidity
requirements prior to the maturity of its long-term indebtedness, although no
assurance can be provided in this regard.
On September 30, 1998, the planned consolidation of the Company's
headquarters in Chicago was completed and the planned 35-person reduction in
administrative headcount was realized.
Additionally, the accounting for two of the Company's five regions was
converted to the APCOA management information systems. A third region is being
converted during the month of November 1998 and the Company's business plan
includes the conversion of the final two regions in early 1999. The Company has
finalized a combined aesthetics program, which will create a common look and
theme for all of the Company's parking facilities. This program is being
implemented over a period of time based upon client input and approval.
If the Company identifies investment opportunities requiring cash in
excess of the Company's cash flows and existing cash, the Company may borrow
under the new credit facility, or may seek additional sources of capital
including the
16
<PAGE> 17
sale or issuance of common stock. The Company has in the past utilized
non-recourse financing to fund specific projects and is presently negotiating a
$1.8 million non-recourse financing facility to fund improvements at two parking
facilities which are being made in consideration of the contract extension and
new agreement granted to the Company.
The Company is in the process of combining the insurance programs of
all subsidiaries into one program. In conjunction therewith, the Company expects
to purchase an insurance policy to cover amounts previously self-insured by
APCOA and its affiliates. The APCOA insurance program had historically included
a self-insured retention component, which required the establishment of reserves
to reflect the estimated final settlement value of open claims. It is currently
estimated that buying a tail policy to eliminate future exposure from
retrospective adjustments would result in a use of cash in a range of $4.0 to
$5.0 million in the fourth quarter of 1998. This transaction would provide an
equally offsetting increase in liquidity by allowing the elimination of letters
of credit.
The Company has in the past and expects in the future to pursue a
strategy of growth through acquisition. On June 1, 1998, the Company completed
the acquisition of Century Parking and Sentry Parking for consideration
consisting of $5.2 million in cash at closing and $1.0 million payable on the
third anniversary of the closing date. The results of operations of Century
Parking and Sentry Parking prior to acquisition were not material to the
Company. In addition, on September 1, 1998 the Company acquired the capital
stock of Virginia Parking Service, Inc. ("VAPARK") for $2.7 million in cash,
subject to adjustment, plus an additional aggregate amount of up to $1.25
million payable over the five-year period immediately following the closing. The
results of operations of VAPARK prior to acquisition were not material to the
Company. The Company is currently in negotiations with respect to several
possible acquisitions, none of which are "probable" as of the date hereof. There
can be no assurance as to the Company's ability to effect future acquisitions,
nor as to the effect of any such acquisition on the Company's operations,
financial condition and profitability.
YEAR 2000
The Year 2000 Issue is the result of computer programs being written
using two digits rather than four to define the applicable year. Any such
computer programs or hardware that have date-sensitive software or
embedded chips may recognize a date using "00" as the year 1900 rather than the
year 2000. This could result in a system failure or miscalculations causing
disruptions of operations including, among other things, a temporary inability
to process transactions or engage in normal business activities.
In conjunction with the integration of the Company's operations
described above, the Company's business plan includes the integration of
existing information and operating systems of the acquired companies with those
of APCOA. This integration is expected to be completed during 1999.
The core business applications and technical infrastructure that will
continue in use when the integration is completed have been tested and are
believed to be Year 2000 compliant. The Company has not, however, evaluated the
degree of compliance of the various systems that will be discontinued. If the
Company does not complete its planned integration within the scheduled time
frame, the impact could potentially be material.
The Company has no material systems that interface directly with those
of third parties. The Company does, however, rely on certain third party vendors
for routine transaction processing such as the clearing of checks and payment of
certain payroll. The Company is monitoring the degree of compliance of these
vendors, and those who are unable to provide assurance of compliance will be
replaced prior to the year 2000. The Company anticipates no difficulty in
locating appropriate replacement vendors should it become necessary, and the
impact to the Company is not expected to be material.
The Company expects to incur no significant costs as a direct result of
the Year 2000 issue. Costs incurred in connection with the Company's integration
plan are described in Note 3 of the Notes to Condensed Consolidated Financial
Statements.
17
<PAGE> 18
SPECIAL CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
This quarterly report contains certain forward-looking statements
within the meaning of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which are
intended to be covered by the safe harbors created thereby. Those statements
include, but may not be limited to, the discussions of the Company's
expectations concerning its future profitability, the discussion of the
Company's strategic relationships, discussions about Year 2000 compliance plans,
and the Company's operating and growth assumptions regarding certain matters,
including anticipated cost savings, in preparation of the unaudited financial
information. Investors are cautioned that forward-looking statements involve
risks and uncertainties. Although the Company believes that the assumptions
underlying the forward-looking statements contained herein are reasonable, any
of the assumptions could be inaccurate and, therefore, there can be no assurance
that the forward-looking statements included will prove to be accurate. In light
of the significant uncertainties inherent in the forward-looking statements
included herein, the inclusion of such information should not be regarded as a
representation by the Company or any other person that the objectives and plans
of the Company will be achieved.
18
<PAGE> 19
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
None
PART II OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 -- Indenture, dated as of March 30, 1998, amended
as of July 6, 1998 and September 21, 1998, by and
among the Company, the Subsidiary Guarantors and
State Street Bank and Trust Company, with respect
to the New Notes.
27.1 -- Financial Data Schedule
- - ------------------------
(b) Reports on Form 8-K
No current report on Form 8-K was filed by the Company during
the quarter ended September 30, 1998.
19
<PAGE> 20
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 thereunto duly authorized:
APCOA/Standard Parking, Inc.
(Registrant)
September 28, 1998
By: /s/ G. Walter Stuelpe, Jr.
------------------------------------
G. Walter Stuelpe, Jr.,
Director and President
September 28, 1998
By: /s/ Michael J. Celebrezze
------------------------------------
Michael J. Celebrezze,
Executive Vice President
and Chief Financial Officer
20
<PAGE> 21
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 -- Indenture, dated as of March 30, 1998, amended
as of July 6, 1998 and September 21, 1998, by and
among the Company, the Subsidiary Guarantors and
State Street Bank and Trust Company, with respect
to the New Notes.
27.1 -- Financial Data Schedule
<PAGE> 1
Exhibit 4.1
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of September 21, 1998, among Virginia Parking Service, Inc. ("Virginia
Parking"), a Virginia corporation and wholly owned subsidiary of APCOA/Standard
Parking, Inc., a Delaware corporation (the "Company"), the Company and State
Street Bank and Trust Company, as trustee under the indenture referred to below
(the "Trustee"). Capitalized terms used herein and not defined herein shall have
the meaning ascribed to them in the Indenture (as defined below).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as of March 30, 1998, as
amended as of July 6, 1998, providing for the issuance of an aggregate principal
amount of $140,000,000 of 9 1/4% New Senior Subordinated Notes due 2008 (the
"New Senior Subordinated Notes");
WHEREAS, Section 11.5 of the Indenture provides that under
certain circumstances the Company may cause, and Section 11.3 of the Indenture
provides that under certain circumstances the Company must cause, certain of its
subsidiaries to execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiaries shall unconditionally guarantee all of the
Company's Obligations under the New Senior Subordinated Notes pursuant to a New
Note Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee
is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
Virginia Parking and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the New Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. AGREEMENT TO NEW NOTE GUARANTEE. Virginia Parking hereby agrees, jointly and
severally with all other Subsidiary Guarantors, to guarantee the Company's
Obligations under the New Senior Subordinated Notes and the Indenture on the
terms and subject to the conditions set forth in Article 11 of the Indenture and
to be bound by all other applicable provisions of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer,
employee, incorporator, shareholder or agent of any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the New Senior Subordinated Notes, any New Note
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
<PAGE> 2
Holder by accepting a New Senior Subordinated Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the New Senior Subordinated Notes.
4. NEW YORK LAW TO GOVERN. The internal law of the State of New York shall
govern and be used to construe this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and
shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the correctness of the recitals of fact contained
herein, all of which recitals are made solely by Virginia Parking.
[SIGNATURE PAGES FOLLOW]
-2-
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated as of September 21, 1998
APCOA/STANDARD PARKING, INC.
By: /s/
---------------------------------------
Name: Michael J. Celebrezze
Title: Executive Vice President and
Chief Financial Officer
VIRGINIA PARKING SERVICE, INC.
By: /s/
---------------------------------------
Name: Michael J. Celebrezze
Title: Vice President and Treasurer
-3-
<PAGE> 4
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/
---------------------------------------
Name:
Title:
-4-
<PAGE> 5
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of July 6, 1998, among S&S Parking, Inc., Century Parking, Inc. and Sentry
Parking Corporation (collectively, the "New Subsidiary Guarantors"), each a
California corporation and wholly owned subsidiary of APCOA/Standard Parking,
Inc., a Delaware corporation (the "Company"), the Company and State Street Bank
and Trust Company, as trustee under the indenture referred to below (the
"Trustee"). Capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Indenture (as defined below).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of March 30, 1998, providing
for the issuance of an aggregate principal amount of $140,000,000 of 9 1/4%
Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes");
WHEREAS, Section 11.5 of the Indenture provides that under certain
circumstances the Company may cause, and Section 11.3 of the Indenture provides
that under certain circumstances the Company must cause, certain of its
subsidiaries to execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiaries shall unconditionally guarantee all of the
Company's Obligations under the Senior Subordinated Notes pursuant to a Note
Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. AGREEMENT TO NOTE GUARANTEE. The New Subsidiary Guarantors hereby agree,
jointly and severally with all other Subsidiary Guarantors, to guarantee the
Company's Obligations under the Senior Subordinated Notes and the Indenture on
the terms and subject to the conditions set forth in Article 11 of the Indenture
and to be bound by all other applicable provisions of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer,
employee, incorporator, shareholder or agent of any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Senior Subordinated Notes, any Note Guarantees,
the Indenture or this Supplemental Indenture or for any claim based
<PAGE> 6
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Senior Subordinated Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Senior Subordinated Notes.
4. NEW YORK LAW TO GOVERN. The internal law of the State of New York shall
govern and be used to construe this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and
shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the correctness of the recitals of fact contained
herein, all of which recitals are made solely by the New Subsidiary Guarantors.
[SIGNATURE PAGES FOLLOW]
-2-
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated as of July 6, 1998
APCOA/STANDARD PARKING, INC.
By: /s/
---------------------------------------
Name: Michael J. Celebrezze
Title: Executive Vice President and
Chief Financial Officer
S&S PARKING, INC.
By: /s/
---------------------------------------
Name: Michael J. Celebrezze
Title: Vice President and Treasurer
CENTURY PARKING, INC.
By: /s/
---------------------------------------
Name: Michael J. Celebrezz1e
Title: Vice President and Treasurer
SENTRY PARKING CORPORATION
By: /s/
---------------------------------------
Name: Michael J. Celebrezze
Title: Vice President and Treasurer
-3-
<PAGE> 8
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/
---------------------------------------
Name:
Title:
-4-
<PAGE> 9
EXECUTION COPY
================================================================================
APCOA, Inc.
----------------------------------------
$140,000,000
9 1/4% SENIOR SUBORDINATED NOTES DUE 2008
----------------------------------------
------------------------------
INDENTURE
DATED AS OF MARCH 30, 1998
------------------------------
State Street Bank and Trust Company
Trustee
================================================================================
<PAGE> 10
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) NA.
(a)(4)N.A.
(a)(5) 7.10
(b) 7.03; 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b)13.03
(c) 13.03
313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06; 7.07
(c) 7.06;13.02
(d)7.06
314(a) 4.03;13.05
(b) N.A.
(c)(1) 13.04
(c)(2) 13.04
(c)(3) N.A.
(d)N.A.
(e) 13.05
(f)N.A.
315 (a)7.0l
(b)7.05,13.02
(c) 7.01
(d)7.01
(e)6.1 1
316 (a)(last sentence) 2.09
(a)( 1 )(A)6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.13
317 (a)(1) 6.08
(a)(2)6.09
<PAGE> 11
(b) 2.04
318(a) 13.01
(b) N.A.
(c)13.01
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
<PAGE> 12
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.....................1
Section 1.1 Definitions..............................................1
Section 1.2. Other Definitions.......................................18
Section 1.3 Incorporation by Reference of Trust Indenture Act.......18
Section 1.4 Rules of Construction...................................19
ARTICLE 2. THE NOTES.....................................................19
Section 2.1 Form and Dating.........................................19
Section 2.2 Execution and Authentication............................21
Section 2.3 Registrar and Paying Agent..............................22
Section 2.4 Paying Agent to Hold Money in Trust.....................22
Section 2.5 Holder Lists............................................23
Section 2.6 Transfer and Exchange...................................23
Section 2.7 Replacement Notes.......................................31
Section 2.8 Outstanding Notes.......................................32
Section 2.9 Treasury Notes..........................................32
Section 2.10 Temporary Notes.........................................32
Section 2.11 Cancellation............................................33
Section 2.12 Defaulted Interest......................................33
Section 2.13 Record Date.............................................33
Section 2.14 Computation of Interest.................................33
Section 2.15 CUSIP Number............................................34
ARTICLE 3. REDEMPTION AND PREPAYMENT.....................................34
Section 3.1 Notices to Trustee......................................34
Section 3.2 Selection of Notes to be Redeemed or Purchased..........34
Section 3.3 Notice of Redemption....................................35
Section 3.4 Effect of Notice of Redemption..........................36
Section 3.5 Deposit of Redemption or Purchase Price.................36
Section 3.6 Notes Redeemed in Part..................................36
Section 3.7 Optional Redemption.....................................36
Section 3.8 Mandatory Redemption....................................36
Section 3.9 Repurchase Offers.......................................37
ARTICLE 4. COVENANTS.....................................................39
Section 4.1 Payment of Notes........................................39
Section 4.2 Maintenance of Office or Agency.........................39
Section 4.3 Commission Reports......................................40
Section 4.4 Compliance Certificate..................................40
Section 4.5 Taxes...................................................41
Section 4.6 Stay, Extension and Usury Laws..........................41
-i-
<PAGE> 13
Section 4.7 Restricted Payments.....................................42
Section 4.8 Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.................................44
Section 4.9 Incurrence of Indebtedness and Issuance of
Preferred Stock.........................................45
Section 4.10 Assets Sales............................................48
Section 4.11 Transactions with Affiliates............................48
Section 4.12 Liens...................................................50
Section 4.13 Sale and Leaseback Transactions.........................50
Section 4.14 Offer to Purchase Upon Change of Control................50
Section 4.15 Corporate Existence.....................................51
Section 4.16 Limitation on Issuances of Capital Stock of Wholly
Owned Restricted Subsidiaries...........................51
Section 4.17 Limitations on Issuances of Guarantees of
Indebtedness............................................52
Section 4.18 Business Activities.....................................52
Section 4.19 Additional Guarantees...................................52
Section 4.20 Payment for Consents....................................53
Section 4.21 Anti-Layering...........................................53
ARTICLE 5. SUCCESSORS....................................................53
Section 5.1 Merger, Consolidation of Sale of Assets.................53
Section 5.2 Successor Corporation Substituted.......................54
ARTICLE 6. DEFAULTS AND REMEDIES.........................................54
Section 6.1 Events of Default.......................................54
Section 6.2 Acceleration............................................56
Section 6.3 Other Remedies..........................................57
Section 6.4 Waiver of Past Defaults.................................57
Section 6.5 Control by Majority.....................................57
Section 6.6 Limitation on Suits.....................................58
Section 6.7 Rights of Holders of Notes to Receive Payment...........58
Section 6.8 Collection Suit by Trustee..............................58
Section 6.9 Trustee May File Proofs of Claim........................58
Section 6.10 Priorities..............................................59
Section 6.11 Undertaking for Costs...................................59
ARTICLE 7. TRUSTEE.......................................................60
Section 7.1 Duties of Trustee.......................................60
Section 7.2 Rights of Trustee.......................................61
Section 7.3 Individual Rights of Trustee............................62
Section 7.4 Trustee's Disclaimer....................................62
Section 7.5 Notice of Defaults......................................62
Section 7.6 Reports by Trustee to Holders of the Notes..............62
Section 7.7 Compensation And Indemnity..............................63
Section 7.8 Replacement of Trustee..................................64
Section 7.9 Successor Trustee by Merger, etc........................65
-ii-
<PAGE> 14
Section 7.10 Eligibility; Disqualification...........................65
Section 7.11 Preferential Collection of Claims Against The
Company.................................................65
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE......................65
Section 8.1 Option to Effect Legal Defeasance or Covenant
Defeasance..............................................65
Section 8.2 Legal Defeasance and Discharge..........................65
Section 8.3 Covenant Defeasance.....................................66
Section 8.4 Conditions to Legal or Covenant Defeasance..............66
Section 8.5 Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions...........68
Section 8.6 Repayment to The Company................................68
Section 8.7 Reinstatement...........................................69
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER..............................69
Section 9.1 Without Consent of Holders of the Notes.................69
Section 9.2 With Consent of Holders of Notes........................70
Section 9.3 Compliance with Trust Indenture Act.....................71
Section 9.4 Revocation and Effect of Consents.......................71
Section 9.5 Notation on or Exchange of Notes........................72
Section 9.6 Trustee to Sign Amendments, etc.........................72
ARTICLE 10. SUBORDINATION.................................................72
Section 10.1 Agreement to Subordinate................................72
Section 10.2 Liquidation; Dissolution; Bankruptcy....................72
Section 10.3 Default on Designated Senior Debt.......................73
Section 10.4 Acceleration of Notes...................................74
Section 10.5 When Distribution Must Be Paid Over.....................74
Section 10.6 Notice by the Company...................................74
Section 10.7 Subrogation.............................................74
Section 10.8 Relative Rights.........................................75
Section 10.9 Subordination May Not Be Impaired by the Company........75
Section 10.10 Distribution or Notice to Representative................76
Section 10.11 Rights of Trustee and Paying Agent......................76
Section 10.12 Authorization to Effect Subordination...................77
Section 10.13 Amendments..............................................77
ARTICLE 11. GUARANTEE OF NOTES............................................77
Section 11.1 Note Guarantee..........................................77
Section 11.2 Execution and Delivery of Note Guarantee................78
Section 11.3 Subsidiary Guarantors May Consolidate, etc., on
Certain Terms...........................................79
Section 11.4 Releases Following Sale of Assets, Merger, Sale of
Capital Stock Etc.......................................80
Section 11.5 Additional Subsidiary Guarantors........................80
Section 11.6 Limitation on Subsidiary Guarantor Liability............80
Section 11.7 "Trustee" to Include Paying Agent.......................81
-iii-
<PAGE> 15
ARTICLE 12. SUBORDINATION OF NOTE GUARANTEE...............................81
Section 12.1 Agreement to Subordinate................................81
Section 12.2 Liquidation; Dissolution; Bankruptcy....................81
Section 12.3 Default on Designated Guarantor Senior Debt.............82
Section 12.4 Acceleration of Note Guarantees.........................82
Section 12.5 When Distribution Must Be Paid Over.....................83
Section 12.6 Notice by Subsidiary Guarantor..........................83
Section 12.7 Subrogation.............................................83
Section 12.8 Relative Rights.........................................84
Section 12.9 Subordination May Not Be Impaired by Subsidiary
Guarantor...............................................84
Section 12.10 Distribution or Notice to Representative................85
Section 12.11 Rights of Trustee and Paying Agent......................85
Section 12.12 Authorization to Effect Subordination...................86
Section 12.13 Amendments..............................................86
ARTICLE 13. MISCELLANEOUS.................................................86
Section 13.1 Trust Indenture Act Controls............................86
Section 13.2 Notices.................................................86
Section 13.3 Communication by Holders of Notes with Other
Holders of Notes........................................87
Section 13.4 Certificate and Opinion as to Conditions Precedent......88
Section 13.5 Statements Required in Certificate or Opinion...........88
Section 13.6 Rules by Trustee and Agents.............................88
Section 13.7 No Personal Liability of Directors, Officers,
Employees and Stockholders..............................88
Section 13.8 Governing Law...........................................89
Section 13.9 No Adverse Interpretation of Other Agreements...........89
Section 13.10 Successors..............................................89
Section 13.11 Severability............................................89
Section 13.12 Counterpart Originals...................................89
Section 13.13 Table of Contents, Headings, etc........................89
EXHIBITS
Exhibit A FORM OF NOTE....................................................
Exhibit B FORM OF CERTIFICATE OF TRANSFEROR...............................
Exhibit C FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR...............................
Exhibit D FORM OF NOTE GUARANTEE..........................................
Exhibit E FORM OF SUPPLEMENTAL INDENTURE..................................
-iv-
<PAGE> 16
Indenture, dated as of March 30, 1998, among APCOA, Inc., a Delaware
corporation (the "Company"), Tower Parking, Inc., a Ohio corporation, Graelic,
Inc. a Ohio corporation, APCOA Capital Corporation, a Delaware corporation, A-1
Auto Park, Inc., a Georgia corporation, Metropolitan Parking System, Inc., a
Massachusetts corporation, Events Parking Company, Inc., a Massachusetts
corporation, Standard Parking, L.P., a Delaware limited partnership, Standard
Parking Corporation, an Illinois corporation, Standard Parking Corporation, MW,
an Illinois corporation, Standard Auto Park, Inc., an Illinois corporation,
Standard/Wabash Parking Corporation, an Illinois corporation, Standard Parking
of Canada, L.P., an Illinois limited partnership, Standard Parking I, L.L.C., a
Delaware limited Liability corporation and Standard Parking II, L.L.C., a
Delaware limited Liability corporation (each of the above, with the exception of
the Company, a "Subsidiary Guarantor" and together, the "Subsidiary Guarantors")
and State Street Bank and Trust Company, as trustee (the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the holders of the Company's 9 1/4% Senior Subordinated Notes due 2008 (the
"Senior Subordinated Notes") and the new 9 1/4% Senior Subordinated Notes due
2008 (the "New Senior Subordinated Notes" and, together with the Senior
Subordinated Notes, the "Notes"):
<PAGE> 17
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures of
the Depositary that apply to such transfer and exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than sales of inventory in the ordinary course of
business consistent with past practices provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of the Indenture described above under the caption "--Change of
Control" and/or the provisions described above under the caption "--Merger,
Consolidation or Sale of Assets" and not by the provisions of the Asset Sale
covenant), and (ii) the issue or sale by the Company or any of its Restricted
Subsidiaries of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $3.0 million or (b) for net proceeds in excess of $3.0
million. Notwithstanding the foregoing: (i) a transfer of assets by the Company
to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, (ii)
an issuance of Equity Interests by a Wholly Owned Restricted Subsidiary to the
Company or to another Wholly Owned Restricted
<PAGE> 18
Subsidiary, and (iii) a Restricted Payment that is permitted by the covenant
described above under the caption "--Restricted Payments" will not be deemed to
be Asset Sales.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company or
any authorized committee of such board of directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any lender party to the New
Credit Facility or with any domestic commercial bank having capital and surplus
in excess of $500 million and a Thompson Bank Watch Rating of "B" or better,
(iv) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iii) above
entered into with any financial institution meeting the qualifications specified
in clause (iii) above, and (v) commercial paper having the highest rating
obtainable from Moody's Investors Service, Inc. or Standard & Poor's Corporation
and in each case maturing within six months after the date of acquisition.
"Cedel" means Cedel Bank, societe anonyme.
2
<PAGE> 19
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of Holdings and its Subsidiaries or of
the Company and its Subsidiaries, in each case, taken as a whole to any "person"
(as such term is used in Section 13(d)(3) of the Exchange Act) other than the
Principals or their Related Parties (as defined below), (ii) the adoption of a
plan relating to the liquidation or dissolution of Holdings or the Company,
(iii) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any "person" (as defined
above), other than the Principals and their Related Parties, becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire, whether
such right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition), directly or indirectly, of more than 50% of the
Voting Stock of Holdings or the Company (measured by voting power rather than
number of shares), (iv) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors or (v) Holdings
or the Company consolidates with, or merges with or into, any Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, Holdings or the Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of Holdings or the
Company is converted into or exchanged for cash, securities or other property,
other than any such transaction where the Voting Stock of Holdings or the
Company outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately after giving
effect to such issuance).
"Commission" means the Securities and Exchange Commission.
"Company" means APCOA, Inc., a Delaware corporation.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i) an
amount equal to any extraordinary loss plus any net loss realized in connection
with an Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Consolidated Net Income,
plus (iii) consolidated interest expense of such Person and its Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations), to the extent that any such expense was deducted in
computing such Consolidated Net Income, plus (iv) depreciation, amortization
(including amortization of goodwill and other intangibles but excluding
3
<PAGE> 20
amortization of prepaid cash expenses that were paid in a prior period) and
other non-cash expenses (excluding any such non-cash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income, plus (v) one-time charges related to the
Combination, to the extent that such charges were deducted in computing
Consolidated Net Income, plus (vi) in connection with any acquisition by the
Company or a Restricted Subsidiary, projected quantifiable improvements in
operating results (on an annualized basis) due to cost reductions calculated in
good faith by the Company or one of its Restricted Subsidiaries, as evidenced by
(A) in the case of cost reductions of less than $10.0 million, an Officers'
Certificate delivered to the Trustee and (B) in the case of cost reductions of
$10.0 million or more, a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee, minus (vii) non-cash items
increasing such Consolidated Net Income for such period. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash charges of, a Subsidiary of the
referent Person shall be added to Consolidated Net Income to compute
Consolidated Cash Flow only to the extent that a corresponding amount would be
permitted at the date of determination to be dividend to the Company by such
Subsidiary without prior governmental approval (that has not been obtained), and
without direct or indirect restriction pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Subsidiary or its stockholders,
(iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded, (iv) the cumulative effect of a change in accounting principles shall
be excluded and (v) the Net Income of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the Company or one of its Restricted
Subsidiaries for purposes of the covenant described under the covenant
"Incurrence of Indebtedness and Issuance of Preferred Stock."
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than
4
<PAGE> 21
Disqualified Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to the
extent of any cash received by such Person upon issuance of such preferred
stock, less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the date of the Indenture in the book value of any asset owned by
such Person or a consolidated Subsidiary of such Person, (y) all investments as
of such date in unconsolidated Subsidiaries and in Persons that are not
Subsidiaries (except, in each case, Permitted Investments), and (z) all
unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of the Indenture or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 13.2 hereof or such other address as to which
the Trustee may give notice to the Company.
"Credit Agent" means The First National Bank of Chicago, in its
capacity as Agent for the lenders party to the New Credit Facility or any
successor thereto or any person otherwise appointed.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Notes" means Notes that are in the form of EXHIBIT A-1
attached hereto (but without including the text referred to in footnotes 1 and 3
thereto).
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 hereof as
the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to Section 2.6 of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Debt" means (i) any Indebtedness outstanding
under the New Credit Facility and (ii) any other Senior Debt permitted under the
Indenture the principal amount of which is $25.0 million or more and that has
been designated by the Company as "Designated Senior Debt.
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to
5
<PAGE> 22
the date that is 91 days after the date on which the Notes mature; provided,
however, that any Capital Stock that would not qualify as Disqualified Stock but
for change of control provisions shall not constitute Disqualified Stock if the
provisions are not more favorable to the holders of such Capital Stock than the
provisions described under Section 4.14 hereof.
"DLJ" means Donaldson, Lufkin & Jenrette Securities Corporation.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York, the
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer by the Company to Holders to
exchange Senior Subordinated Notes for New Senior Subordinated Notes.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the New Credit Facility) in
existence on the date of the Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period,
the sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations) and (ii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period, and (iii) to
the extent paid by such Person, any interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries (whether or not such Guarantee or Lien is called upon) and (iv) the
product of (a) all dividend payments, whether or not in cash, on any series of
preferred stock of such Person or any of its Restricted Subsidiaries, other than
dividend payments on Equity Interests payable solely in Equity Interests of the
Company, times (b) a fraction, the numerator of which is one and the denominator
of which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP.
6
<PAGE> 23
"Fixed Charge Coverage Ratio" means with respect to any Person for
any period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the Company or
any of its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that have
been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, and (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, and (iii) the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the referent Person
or any of its Restricted Subsidiaries following the Calculation Date.
"Foreign Subsidiary" means any Subsidiary organized and existing
under the laws of a jurisdiction other than those of any state or commonwealth
in the Unites States of America.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date of the Indenture.
"Global Notes" means the Rule 144A Global Notes, the Regulation S
Temporary Global Notes and the Regulation S Permanent Global Notes.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner
7
<PAGE> 24
(including, without limitation, letters of credit and reimbursement agreements
in respect thereof), of all or any part of any Indebtedness.
"Guarantor Senior Debt" means Senior Debt of a Subsidiary Guarantor.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates or currency rates.
"Holberg" means Holberg Industries, Inc., a Delaware corporation,
the indirect parent of the Company.
"Holder" means a Person in whose name a Note is registered.
"Holdings" means AP Holdings, Inc., a Delaware corporation and the
parent (but not 100% owner) of APCOA, Inc.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be (i) the
accreted value thereof, in the case of any Indebtedness that does not require
current payments of interest, and (ii) the principal amount thereof, together
with any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds an interest through
a Participant.
"Initial Purchasers" means Donaldson, Lufkin & Jenrette Securities
Corporation and First Chicago Capital Markets, Inc.
"Insolvency or Liquidation Proceedings" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding, relative to the Company or to the creditors
of the Company, as such, or to the assets of the Company, or (ii) any
liquidation, dissolution, reorganization or winding up of the Company, whether
voluntary or involuntary and involving insolvency or bankruptcy, or (iii) any
8
<PAGE> 25
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of the Company.
"Institutional Accredited Investor" means an "accredited investor"
as defined in Rule 501(a)(l), (2), (3) or (7) under the Securities Act.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of the covenant described above under the
caption "--Restricted Payments."
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal Corporate
Trust Office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment shall be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"AP Holdings" means AP Holdings, Inc., a Delaware corporation, the
parent of the Company.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback transactions) or
(b) the
9
<PAGE> 26
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain (but
not loss), together with any related provision for taxes on such extraordinary
or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"New Credit Facility" means that certain Credit Agreement, dated as
of the date of the Indenture, by and among the Company, the lenders and other
parties thereto from time to time and The First National Bank of Chicago, as
agent, together with all related documents executed or delivered pursuant
thereto at any time (including, without limitation, all mortgages, guarantees,
security agreements and all other collateral and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder provided that such increase in borrowings is within the definition of
Permitted Indebtedness or is otherwise permitted under the covenant described
"Incurrence of Indebtedness and Issuance of Preferred Stock") or adding
Subsidiaries as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness and other Obligations under such agreement or
agreements or any successor or replacement agreement or agreements, and whether
by the same or any other agent, lender or group of lenders.
"New Senior Subordinated Notes" means the Company's 9 1/4% Senior
Subordinated Notes due 2008, which will be issued in exchange for the Company's
Senior Subordinated Notes.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitutes the lender; (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Notes being offered hereby) of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; and
(iii) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries.
10
<PAGE> 27
"Note Custodian" means the Trustee, when serving as custodian for
the Depositary with respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness, and in all cases whether now
outstanding or hereafter created, assumed or incurred and including, without
limitation, interest accruing subsequent to the filing of a petition in
bankruptcy at the rate provided in the relevant document, whether or not an
allowed claim, and any obligation to redeem or defease any of the foregoing.
"Offering" means the offer and sale of the Senior Subordinated Notes
as contemplated by the Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum, dated March 25,
1998, relating to the Company's offering and placement of the Senior
Subordinated Notes.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 13.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
13.5 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a
Person who has an account with DTC, Euroclear or Cedel, respectively (and, with
respect to DTC, shall include Euroclear and Cedel).
"payment in full" (together with any correlative phrases e.g. "paid
in full" and "pay in full") means (i) with respect to any Senior Debt other than
Senior Debt under or in respect of the New Credit Facility, payment in full
thereof or due provision for payment thereof (x) in accordance with the terms of
the agreement or instrument pursuant to which such Senior Debt was issued or is
governed or (y) otherwise to the reasonable satisfaction of the holders of such
Senior Debt, which shall include, in any Insolvency or Liquidation Proceeding,
approval by such holders individually or as a class, of the provision for
payment thereof, and (ii) with respect to Senior Debt under or in respect of the
New Credit Facility, payment in full thereof in cash or Cash Equivalents.
11
<PAGE> 28
"Permitted Business" means any of the businesses and any other
businesses related to the businesses engaged in by the Company and its
respective Restricted Subsidiaries on the date of the Indenture.
"Permitted Investments" means (a) any Investment in the Company or
in a Wholly Owned Restricted Subsidiary of the Company that is engaged in a
Permitted Business; (b) any Investment in Cash Equivalents; (c) any Investment
by the Company or any Restricted Subsidiary of the Company in a Person, if as a
result of such Investment (i) such Person becomes a Wholly Owned Restricted
Subsidiary of the Company that is engaged in a Permitted Business or (ii) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Wholly Owned Restricted Subsidiary of the Company that is engaged in a
Permitted Business; (d) any Restricted Investment made as a result of the
receipt of non-cash consideration from an Asset Sale that was made pursuant to
and in compliance with the covenant described above under the caption
"--Repurchase at the Option of Holders--Asset Sales"; (e) any acquisition of
assets solely in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; (f) loans and advances made after the date
of the Indenture to Holberg Industries, Inc. not to exceed $10.0 million at any
time outstanding; (g) make and permit to remain outstanding travel and other
like advances in the ordinary course of business consistent with past practices
to officers and employees of the Company or a Subsidiary of the Company; (h)
other Investments made after the date of the Indenture in any Person having an
aggregate fair market value (measured on the date each such Investment was made
and without giving effect to subsequent changes in value), when taken together
with all other Investments made pursuant to this clause (h) that are at the time
outstanding, not to exceed $10 million; and (i) loans and advances made after
the date of the Indenture to Holdings, not to exceed $9.0 million at any time
outstanding.
"Permitted Liens" means (i) Liens securing Senior Debt under the New
Credit Facility that were permitted by the terms of the Indenture to be
incurred; (ii) Liens in favor of the Company; (iii) Liens on property of a
Person existing at the time such Person is merged into or consolidated with the
Company or any Restricted Subsidiary of the Company; provided that such Liens
were in existence prior to the contemplation of such merger or consolidation and
do not extend to any assets other than those of the Person merged into or
consolidated with the Company; (iv) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company,
provided that such Liens were in existence prior to the contemplation of such
acquisition; (v) Liens to secure the performance of bids, tenders, contracts,
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vi)
Liens existing on the date of the Indenture; (vii) Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that do not
exceed $5.0 million at any one time outstanding and that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not in
the aggregate
12
<PAGE> 29
materially detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or such Restricted
Subsidiary; (ix) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries; (x) Liens on the daily revenues
in favor of Persons other than the Company and its Restricted Subsidiaries who
are parties to parking facility agreements for the amounts due to them pursuant
thereto; (xi) Liens arising by applicable law in respect of employees' wages,
salaries or commissions not overdue; and (xii) Liens arising out of judgments or
awards not in excess of $5.0 million with respect to which the Company or its
Subsidiary with respect to which the Company or such Subsidiaries are
prosecuting an appeal or a proceeding or review and the enforcement of such lien
is stayed pending such appeal or review.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries;
provided that: (i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount of
(or accreted value, if applicable), plus accrued interest on, the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded plus the amount
of reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred either by the
Company or by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Principals" means Holberg Industries, Inc., John V. Holten or, in
the case of the Company, Holdings.
"Private Placement Legend" means the legend initially set forth on
the Senior Subordinated Notes in the form set forth in Section 2.6(f) hereof.
"Public Equity Offering" means a public offering of Equity Interests
(other than Disqualified Stock) of (i) the Company or (ii) Holdings, to the
extent that the net proceeds thereof are contributed to the Company as a capital
contribution, that, in each case, results in net proceeds to the Company of at
least $25.0 million.
13
<PAGE> 30
"QIB" means a "qualified institutional buyer" as defined in Rule
144A under the Securities Act.
"Receivables" means, with respect to any Person or entity, all of
the following property and interests in property of such Person or entity,
whether now existing or existing in the future or hereafter acquired or arising:
(i) accounts, (ii) accounts receivable incurred in the ordinary course of
business, including without limitation, all rights to payment created by or
arising from sales of goods, leases of goods or the rendition of services no
matter how evidenced, whether or not earned by performance, (iii) all rights to
any goods or merchandise represented by any of the foregoing after creation of
the foregoing, including, without limitation, returned or repossessed goods,
(iv) all reserves and credit balances with respect to any such accounts
receivable or account debtors, (v) all letters of credit, security, or
guarantees for any of the foregoing, (vi) all insurance policies or reports
relating to any of the foregoing, (vii) all collection or deposit accounts
relating to any of the foregoing, (viii) all proceeds of the foregoing and (ix)
all books and records relating to any of the foregoing.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, by and among the Company, the Subsidiary
Guarantors and the Initial Purchasers.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Notes" means the Regulation S Temporary Global
Notes or the Regulation S Permanent Global Notes as applicable.
"Regulation S Permanent Global Notes" means the permanent global
notes that do not contain the paragraphs referred to in footnote 1 to the form
of the Note attached hereto as EXHIBIT A-2, and that are deposited with and
registered in the name of the Depositary or its nominee, representing a series
of Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Notes" means the temporary global
notes that contain the paragraphs referred to in footnote 1 to the form of the
Note attached hereto as EXHIBIT A-2, and that are deposited with and registered
in the name of the Depositary or its nominee, representing a series of Notes
sold in reliance on Regulation S.
"Related Party" with respect to any Principal means (A) any
controlling stockholder or partner, 80% (or more) owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such Principal or (B)
any trust, corporation, partnership, limited liability company or other entity,
the beneficiaries, stockholders, partners, members, owners or Persons
beneficially holding an 80% or more controlling interest of which consist of
such Principal and/or such other Persons referred to in the immediately
preceding clause (A).
"Reorganization Securities" means securities distributed to the
Holders of the Notes in an Insolvency or Liquidation Proceeding pursuant to a
plan of reorganization consented to by each class of the Senior Debt, but only
if all of the terms and conditions of such securities (including, without
limitation, term, tenor, interest, amortization, subordination, standstills,
14
<PAGE> 31
covenants and defaults), are at least as favorable (and provide the same
relative benefits) to the holders of Senior Debt and to the holders of any
security distributed in such Insolvency or Liquidation Proceeding on account of
any such Senior Debt as the terms and conditions of the Notes and the Indenture
are, and provide to the holders of Senior Debt.
"Representative" means the trustee, agent or representative for any
Senior Debt.
"Responsible Officer" when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the Rule 144A Global Note or the
Regulation S Global Note.
"Restricted Broker Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Restricted Global Notes" means the Rule 144A Global Notes and the
Regulation S Global Notes, all of which shall bear the Private Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Notes" means the permanent global notes that
contain the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 3 to the form of the Note attached hereto as EXHIBIT
A-1, and that is deposited with and registered in the name of the Depositary or
its nominee, representing a series of Notes sold in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means (i) all Indebtedness outstanding under the New
Credit Facility, including any Guarantees thereof and all Hedging Obligations
with respect thereto, (ii) any other Indebtedness permitted to be incurred by
the Company or its Restricted Subsidiaries under the terms of the Indenture,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is on a parity with or subordinated in right of payment to the
Notes and (iii) all Obligations with respect to the foregoing. Notwithstanding
anything to the contrary in the foregoing, Senior Debt will not include (w) any
liability for federal, state, local or other taxes owed or owing by the Company,
(x) any Indebtedness of the Company to any of its
15
<PAGE> 32
Subsidiaries or other Affiliates, (y) any trade payables or (z) any Indebtedness
that is incurred in violation of the Indenture.
"Senior Subordinated Notes" means the Company's 9 1/4% Senior
Subordinated Notes due 2008.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantors" means all Subsidiaries of the Company that
execute a Note Guarantee of the Notes substantially in the form of EXHIBIT D
attached hereto.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb), as amended, as in effect on the date hereof.
"Transfer Restricted Securities" means Notes or beneficial interests
therein that bear or are required to bear the Private Placement Legend.
"Trustee" means State Street Bank and Trust Company until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter means the successor.
"Unrestricted Global Notes" means one or more Global Notes that do
not and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
Board Resolution; but only to the
16
<PAGE> 33
extent that such Subsidiary: (a) has no Indebtedness other than Non-Recourse
Debt; (b) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company nor any of its Restricted Subsidiaries
has any direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; and (e)
has at least one director on its board of directors that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Company or any of its Restricted Subsidiaries. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with the Trustee
a certified copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted by Section 4.7 hereof. If, at any time,
any Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be incurred as of such
date under Section 4.9 hereof, the Company shall be in default of such
covenant). The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (i) such Indebtedness
is permitted under Section 4.9 hereof, and (ii) no Default or Event of Default
would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiaries of such Person.
17
<PAGE> 34
Section 1.2. Other Definitions.
Defined in
Term Section
"Affiliate Transaction".............................4.11
"Asset Sale Offer"..................................4.10
"Change of Control Offer"...........................4.14
"Change of Control Payment".........................4.14
"Change of Control Payment Date"....................4.14
"Covenant Defeasance"................................8.3
"Custodian"..........................................6.1
"DTC"................................................2.3
"Event of Default"...................................6.1
"Excess Proceeds"...................................4.10
"incur"..............................................4.9
"Legal Defeasance"...................................8.2
"Offer Amount".......................................3.9
"Offer Period".......................................3.9
"Paying Agent".......................................2.3
"Payment Default"....................................6.1
"Permitted Debt".....................................4.9
"Purchase Date"......................................3.9
"Registrar"..........................................2.3
"Repurchase Offer"...................................3.9
"Restricted Payments"................................4.7
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, each Subsidiary Guarantor
and any successor obligor upon the Notes.
18
<PAGE> 35
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them therein.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
ARTICLE 2.
THE NOTES
Section 2.1. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A-1 or EXHIBIT A-2 attached hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes initially shall be issued in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
(a) Global Notes. Notes offered and sold to QIBs in reliance on Rule
144A shall be issued initially in the form of Rule 144A Global Notes, which
shall be deposited on behalf of the purchasers of the Notes represented thereby
with a custodian of the Depositary, and registered in the name of the Depositary
or a nominee of the Depositary, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of the
Rule 144A Global Notes may from time to time be increased or decreased by
19
<PAGE> 36
adjustments made on the records of the Trustee and the Depositary or its nominee
as hereinafter provided.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Cedel, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The "40-day restricted
period" (as defined in Regulation S) shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Cedel certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Notes (except to the
extent of any beneficial owners thereof who acquired an interest therein
pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a Rule 144A Global
Note, all as contemplated by Section 2.6(a)(ii) hereof), and (ii) an Officers'
Certificate from the Company certifying as to the same matters covered in clause
(i) above. Following the termination of the 40-day restricted period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary
Global Notes. The aggregate principal amount of the Regulation S Temporary
Global Notes and the Regulation S Permanent Global Notes may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Note Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.6 hereof.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Temporary Global Notes and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or Cedel.
The Trustee shall have no obligation to notify Holders of any such procedures or
to monitor or enforce compliance with the same.
20
<PAGE> 37
Except as set forth in Section 2.6 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to
Rule 144A Global Notes and Regulation S Permanent Global Notes deposited with or
on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver the Global Notes that (i) shall be
registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the Note
Custodian as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall be
substantially in the form of EXHIBIT A-1 attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
Section 2.2. Execution and Authentication.
An Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in EXHIBIT A-1 or EXHIBIT A-2 hereto.
The Trustee shall, upon a written order of the Company signed by an
Officer directing the Trustee to authenticate the Notes, authenticate Notes for
original issue up to the aggregate principal amount stated in paragraph 4 of the
Notes. The Trustee shall, upon written order of the Company signed by an
Officer, authenticate New Senior Subordinated Notes for
21
<PAGE> 38
original issuance in exchange for a like principal amount of Senior Subordinated
Notes exchanged in the Exchange Offer or otherwise exchanged for New Senior
Subordinated Notes pursuant to the terms of the Registration Rights Agreement.
The aggregate principal amount of Notes outstanding at any time may not exceed
such amount except as provided in Section 2.7 hereof.
The Trustee may (at the Company's expense) appoint an authenticating
agent acceptable to the Company to authenticate Notes. An authenticating agent
may authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain (i) an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and (ii)
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and Paying
Agent with respect to the Definitive Notes.
Section 2.4. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
the
22
<PAGE> 39
occurrence of events specified in Section 6.1(vii) through (ix) hereof, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company and/or the Subsidiary Guarantors shall furnish to
the Trustee at least seven (7) Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company and the Subsidiary Guarantors
shall otherwise comply with TIA ss. 312(a).
Section 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.6. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) Rule 144A Global Note to Regulation S Global Note. If, at
any time, an owner of a beneficial interest in a Rule 144A Global Note deposited
with the Depositary (or the Trustee as custodian for the Depositary) wishes to
transfer its beneficial interest in such Rule 144A Global Note to a Person who
is required or permitted to take delivery thereof in the form of an interest in
a Regulation S Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Regulation S Global Note as provided in this Section
2.6(a)(i). Upon receipt by the Trustee of (1) instructions given in accordance
with the Applicable Procedures from a Participant directing the Trustee to
credit or cause to be credited a beneficial interest in the Regulation S Global
Note in an amount equal to the beneficial interest in the Rule 144A Global Note
to be exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the Participant account of the
Depositary and the Euroclear or Cedel account to be credited with such increase,
and (3) a certificate in the form of EXHIBIT B-1 hereto given by the owner of
such beneficial interest stating that the transfer of such interest has been
made in compliance with the transfer restrictions applicable to the Global Notes
and pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S,
then the Trustee, as Registrar, shall instruct the Depositary to reduce or cause
to be reduced the aggregate principal amount at maturity of the applicable Rule
144A Global Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Regulation S Global Note by the
23
<PAGE> 40
principal amount at maturity of the beneficial interest in the Rule 144A Global
Note to be exchanged or transferred, to credit or cause to be credited to the
account of the Person specified in such instructions, a beneficial interest in
the Regulation S Global Note equal to the reduction in the aggregate principal
amount at maturity of the Rule 144A Global Note, and to debit, or cause to be
debited, from the account of the Person making such exchange or transfer the
beneficial interest in the Rule 144A Global Note that is being exchanged or
transferred.
(ii) Regulation S Global Note to Rule 144A Global Note. If, at
any time, after the expiration of the 40-day restricted period, an owner of a
beneficial interest in a Regulation S Global Note deposited with the Depositary
or with the Trustee as custodian for the Depositary wishes to transfer its
beneficial interest in such Regulation S Global Note to a Person who is required
or permitted to take delivery thereof in the form of an interest in a Rule 144A
Global Note, such owner shall, subject to the Applicable Procedures, exchange or
cause the exchange of such interest for an equivalent beneficial interest in a
Rule 144A Global Note as provided in this Section 2.6(a)(ii). Upon receipt by
the Trustee of (1) instructions from Euroclear or Cedel, if applicable, and the
Depositary, directing the Trustee, as Registrar, to credit or cause to be
credited a beneficial interest in the Rule 144A Global Note equal to the
beneficial interest in the Regulation S Global Note to be exchanged, such
instructions to contain information regarding the Participant account with the
Depositary to be credited with such increase, (2) a written order given in
accordance with the Applicable Procedures containing information regarding the
participant account of the Depositary and (3) a certificate in the form of
Exhibit B-2 attached hereto given by the owner of such beneficial interest
stating (A) if the transfer is pursuant to Rule 144A, that the Person
transferring such interest in a Regulation S Global Note reasonably believes
that the Person acquiring such interest in a Rule 144A Global Note is a QIB and
is obtaining such beneficial interest in a transaction meeting the requirements
of Rule 144A and any applicable blue sky or securities laws of any state of the
United States, (B) that the transfer complies with the requirements of Rule 144
under the Securities Act, (C) if the transfer is to an Institutional Accredited
Investor that such transfer is in compliance with the Securities Act and a
certificate in the form of Exhibit C attached hereto and, if such transfer is in
respect of an aggregate principal amount of less than $250,000, an Opinion of
Counsel acceptable to the Company that such transfer is in compliance with the
Securities Act or (D) if the transfer is pursuant to any other exemption from
the registration requirements of the Securities Act, that the transfer of such
interest has been made in compliance with the transfer restrictions applicable
to the Global Notes and pursuant to and in accordance with the requirements of
the exemption claimed, such statement to be supported by an Opinion of Counsel
from the transferee or the transferor in form reasonably acceptable to the
Company and to the Registrar and in each case, in accordance with any applicable
securities laws of any state of the United States or any other applicable
jurisdiction, then the Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount at maturity of such
Regulation S Global Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Rule 144A Global Note by the
principal amount at maturity of the beneficial interest in the Regulation S
Global Note to be exchanged or transferred, and the Trustee, as Registrar, shall
instruct the Depositary, concurrently with such reduction, to credit or cause to
be credited to the account of the Person specified in such instructions a
beneficial interest in the applicable Rule 144A Global Note equal to the
reduction in the aggregate principal amount at maturity of
24
<PAGE> 41
such Regulation S Global Note and to debit or cause to be debited from the
account of the Person making such transfer the beneficial interest in the
Regulation S Global Note that is being exchanged or transferred.
(b) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented by a Holder to the Registrar with a request to register the
transfer of the Definitive Notes or to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested only
if the Definitive Notes are presented or surrendered for registration of
transfer or exchange, are endorsed and contain a signature guarantee or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney and contains a
signature guarantee, duly authorized in writing and the Registrar received the
following documentation (all of which may be submitted by facsimile):
(i) in the case of Definitive Notes that are Transfer
Restricted Securities, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the name of such
Holder, without transfer, or such Transfer Restricted Security is being
transferred to the Company or any of its Subsidiaries, a certification to that
effect from such Holder (in substantially the form of Exhibit B-3 hereto); or
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto); or
(C) if such Transfer Restricted Security is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with
Rule 904 under the Securities Act, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto);
(D) if such Transfer Restricted Security is being
transferred to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than those listed
in subparagraphs (B) and (C) above, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto), a certification
substantially in the form of EXHIBIT C hereto, and, if such transfer is in
respect of an aggregate principal amount of Notes of less than $250,000, an
Opinion of Counsel acceptable to the Company that such transfer is in compliance
with the Securities Act; or
(E) if such Transfer Restricted Security is being
transferred in reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto) and
25
<PAGE> 42
an Opinion of Counsel from such Holder or the transferee reasonably acceptable
to the Company and to the Registrar to the effect that such transfer is in
compliance with the Securities Act.
(c) Transfer of a Beneficial Interest in a Rule 144A Global Note or
Regulation S Permanent Global Note for a Definitive Note.
(i) Any Person having a beneficial interest in a Rule 144A
Global Note or Regulation S Permanent Global Note may upon request, subject to
the Applicable Procedures, exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary (or Euroclear or Cedel, if
applicable), from the Depositary or its nominee on behalf of any Person having a
beneficial interest in a Rule 144A Global Note or Regulation S Permanent Global
Note, and, in the case of a Transfer Restricted Security, the following
additional information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being transferred to
the Person designated by the Depositary as being the beneficial owner, a
certification to that effect from such Person (in substantially the form of
EXHIBIT B-4 hereto);
(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A under the Securities Act or pursuant to an
exemption from registration in accordance with Rule 144 under the Securities Act
or pursuant to an effective registration statement under the Securities Act, a
certification to that effect from the transferor (in substantially the form of
EXHIBIT B-4 hereto);
(C) if such beneficial interest is being transferred to
an Institutional Accredited Investor, pursuant to a private placement exemption
from the registration requirements of the Securities Act (and based on an
opinion of counsel if the Company so requests), a certification to that effect
from such Holder (in substantially the form of EXHIBIT B-4 hereto) and a
certificate from the applicable transferee (in substantially the form of EXHIBIT
C hereto); or
(D) if such beneficial interest is being transferred in
reliance on any other exemption from the registration requirements of the
Securities Act, a certification to that effect from the transferor (in
substantially the form of EXHIBIT B-4 hereto) and an Opinion of Counsel from the
transferee or the transferor reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance with the Securities
Act, in which case the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and procedures
existing between the Depositary and the Note Custodian, cause the aggregate
principal amount of Rule 144A Global Notes or Regulation S Permanent Global
Notes, as applicable, to be reduced accordingly and, following such reduction,
the Company shall execute and, the Trustee shall authenticate and deliver to the
transferee a Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Rule 144A Global Note or Regulation S Permanent Global Note, as
applicable, pursuant to this
26
<PAGE> 43
Section 2.6(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
Indirect Participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Following any such issuance of Definitive Notes, the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of the applicable Global Note to reflect
the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.6), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(e) Transfer and Exchange of a Definitive Note for a Beneficial
Interest in a Global Note. A definitive Note may not be transferred or exchanged
for a beneficial interest in a Global Note.
(f) Authentication of Definitive Notes in Absence of Depositary. If
at any time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global Notes
and a successor Depositary for the Global Notes is not appointed by the Company
within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Notes under this
Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate evidencing Global Notes and Definitive
Notes (and all Notes issued in exchange therefor or substitution thereof) shall
bear the legend (the "Private Placement Legend") in substantially the following
form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY
27
<PAGE> 44
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (l)(a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES
LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND, IN THE CASE OF CLAUSE (b), (c), (d)
OR (e), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY
SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY
28
<PAGE> 45
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Global
Note) pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that
is a Definitive Note, the Registrar shall permit the Holder thereof to exchange
such Transfer Restricted Security for a Definitive Note that does not bear the
legend set forth in (i) above and rescind any restriction on the transfer of
such Transfer Restricted Security upon receipt of a certification from the
transferring holder substantially in the form of EXHIBIT B-4 hereto; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted Security shall not be
required to bear the legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.6(a) and (b) hereof; provided, however,
that with respect to any request for an exchange of a Transfer Restricted
Security that is represented by a Global Note for a Definitive Note that does
not bear the legend set forth in (i) above, which request is made in reliance
upon Rule 144, the Holder thereof shall certify in writing to the Registrar that
such request is being made pursuant to Rule 144 (such certification to be
substantially in the form of EXHIBIT B-4 hereto).
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Global
Note) in reliance on any exemption from the registration requirements of the
Securities Act (other than exemptions pursuant to Rule 144A or Rule 144 under
the Securities Act) in which the Holder or the transferee provides an Opinion of
Counsel to the Company and the Registrar in form and substance reasonably
acceptable to the Company and the Registrar (which Opinion of Counsel shall also
state that the transfer restrictions contained in the legend are no longer
applicable):
(A) in the case of any Transfer Restricted Security that
is a Definitive Note, the Registrar shall permit the Holder thereof to exchange
such Transfer Restricted Security for a Definitive Note that does not bear the
legend set forth in (i) above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted Security shall not be
required to bear the legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.6(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon the consummation of
the Exchange Offer in accordance with the Registration Rights Agreement, the
Company shall issue and, upon receipt of an authentication order in accordance
with Section 2.2 hereof, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes in aggregate principal amount equal to the principal
amount of the Restricted Beneficial Interests tendered for acceptance by persons
29
<PAGE> 46
that are not (x) broker-dealers, (y) Persons participating in the distribution
of the Notes or (z) Persons who are affiliates (as defined in Rule 144) of the
Company and accepted for exchange in the Exchange Offer and (ii) Definitive
Notes that do not bear the Private Placement Legend in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes accepted
for exchange in the Exchange Offer. Concurrently with the issuance of such
Notes, the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly and the Company shall execute
and the Trustee shall authenticate and deliver to the Persons designated by the
Holders of Definitive Notes so accepted Definitive Notes in the appropriate
principal amount.
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in Global Notes have been exchanged for Definitive
Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Notes Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any stamp or transfer tax or similar governmental charge
payable in connection therewith (other than any such stamp or transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.6, 4.10, 4.14 and 9.5 hereto).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(iv) The Registrar shall not be required:(A) to issue, to
register the transfer of or to exchange Notes during a period beginning at the
opening of fifteen (15) Business Days before the day of any selection of Notes
for redemption under Section 3.2 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part, or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest payment
date.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name
30
<PAGE> 47
any Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for all other
purposes, and neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.2 hereof.
Section 2.7. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Company
and the Trustee receives evidence to their satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by an Officer of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.8. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.8 as not outstanding. Except as set forth in Section 2.9 hereof, a
Note does not cease to be outstanding because the Company or any Subsidiary
Guarantor or an Affiliate of the Company or any Subsidiary Guarantor holds the
Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
31
<PAGE> 48
Section 2.9. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Subsidiary Guarantor, or by any Affiliate of the Company or any
Subsidiary Guarantor shall be considered as though not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes shown on the
Trustee's register as being so owned shall be so disregarded. Notwithstanding
the foregoing, Notes that are to be acquired by the Company or any Subsidiary
Guarantor or an Affiliate of the Company or any Subsidiary Guarantor pursuant to
an exchange offer, tender offer or other agreement shall not be deemed to be
owned by such entity until legal title to such Notes passes to such entity.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by an Officer of the Company. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall upon receipt of a written order
of the Company signed by an Officer authenticate Definitive Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver to the Trustee for cancellation
any Notes previously authenticated and delivered hereunder or which the Company
may have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. All Notes surrendered for registration of
transfer, exchange or payment, if surrendered to any Person other than the
Trustee, shall be delivered to the Trustee. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation. Subject to Section 2.7 hereof, the Company may not
issue new Notes to replace Notes that it has redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Company, unless by a written order, signed by an Officer of the Company, the
Company shall direct that cancelled Notes be returned to it.
Section 2.12. Defaulted Interest.
If the Company or any Subsidiary Guarantor defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, which date shall be
at the earliest practicable date but in all events at least five (5)
32
<PAGE> 49
Business Days prior to the payment date, in each case at the rate provided in
the Notes and in Section 4.1 hereof. The Company shall fix or cause to be fixed
each such special record date and payment date, and shall promptly thereafter,
notify the Trustee of any such date. At least fifteen (15) days before the
special record date, the Company (or the Trustee, in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13. Record Date.
The record date for purposes of determining the identity of Holders
of the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA ss. 316 (c).
Section 2.14. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Section 2.15. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders, provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 45 days but not more than 60 days before a redemption date (unless a
shorter period is acceptable to the Trustee) an Officers' Certificate setting
forth (i) the Section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
If the Company is required to make an offer to purchase Notes
pursuant to Section 4.10 or 4.14 hereof, it shall furnish to the Trustee, at
least 45 days before the scheduled purchase date, an Officers' Certificate
setting forth (i) the section of this Indenture pursuant to which the offer to
purchase shall occur, (ii) the terms of the offer, (iii) the principal amount of
Notes to be purchased, (iv) the purchase price, (v) the purchase date and (vi)
and further setting forth a statement to the effect that (a) the Company or one
its Subsidiaries has affected an Asset Sale
33
<PAGE> 50
and there are Excess Proceeds aggregating more than $15.0 million or (b) a
Change of Control has occurred, as applicable.
Section 3.2. Selection of Notes to be Redeemed or Purchased.
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption will be made by the Trustee in compliance with
the requirements of the principal national securities exchange, if any, on which
the Notes are listed, or, if the Notes are not so listed, on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and appropriate;
provided that no Notes of $1,000 or less shall be redeemed in part. Notices of
redemption shall be mailed by first class mail at least 30 but not more than 60
days before the redemption date to each Holder of Notes to be redeemed at its
registered address. Notices of redemption may not be conditional. If any Note is
to be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed. A new
Note in principal amount equal to the unredeemed portion thereof will be issued
in the name of the Holder thereof upon cancellation of the original Note. Notes
called for redemption become due on the date fixed for redemption. On and after
the redemption date, interest ceases to accrue on Notes or portions of them
called for redemption.
Section 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Notes and accrued interest, and
Liquidated Damages, if any;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Notes to be redeemed and that, after the redemption
date, upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion shall be issued upon surrender of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest and Liquidated Damages, if any, on Notes called for redemption
ceases to accrue on and after the redemption date;
34
<PAGE> 51
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, that the Company shall have delivered to the Trustee, at least 45 days
prior to the redemption date (or such shorter period as shall be acceptable to
the Trustee), an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in the notice as provided
in the preceding paragraph. The notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the Holder of any Note shall not affect the validity of
the proceeding for the redemption of any other Note.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price plus accrued and unpaid interest and
Liquidated Damages, if any, to such date. A notice of redemption may not be
conditional.
Section 3.5. Deposit of Redemption or Purchase Price.
On or before 10:00 a.m. (New York City time) on each redemption date
or the date on which Notes must be accepted for purchase pursuant to Section
4.10 or 4.14, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued and unpaid
interest and Liquidated Damages, if any, on all Notes to be redeemed or
purchased on that date. The Trustee or the Paying Agent shall promptly return to
the Company upon its written request any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of (including any applicable premium), accrued interest and
Liquidated Damages, if any, on all Notes to be redeemed or purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or
Change of Control Offer are paid or if the Company has deposited with the
Trustee or Paying Agent money sufficient to pay the redemption or purchase price
of, unpaid and accrued interest and Liquidated Damages, if any, on all Notes to
be redeemed or purchased, on and after the redemption or purchase date interest
and Liquidated Damages, if any, shall cease to accrue on the Notes or the
portions of Notes called for redemption or tendered and not withdrawn in an
Asset Sale Offer or Change of Control Offer (regardless of whether certificates
for such securities are actually surrendered). If a Note is redeemed or
purchased on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest and Liquidated
Damages, if any, shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note called for
redemption shall not be so paid upon
35
<PAGE> 52
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal and
Liquidated Damages, if any, from the redemption or purchase date until such
principal and Liquidated Dames, if any, is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case, at the rate provided
in the Notes and in Section 4.1 hereof.
Section 3.6. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
Section 3.7. Optional Redemption.
(a) Except as set forth in the next paragraph, the Notes will not be
redeemable at the Company's option prior to March , 2003. Thereafter, the Notes
will be subject to redemption at any time at the option of the Company, in whole
or in part, upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on the years indicated below:
<TABLE>
<CAPTION>
Year Percentage
<S> <C>
2003..................................... 104.625%
2004..................................... 103.083%
2005..................................... 101.542%
2006 and thereafter...................... 100.000%
</TABLE>
(b) Notwithstanding the foregoing, at any time prior to March 15,
2001, the Company may redeem up to 35% of the original aggregate principal
amount of Notes at a redemption price of 109.25% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the redemption date, with the net cash proceeds of a Public Equity
Offering; provided that at least 65% of the original aggregate principal amount
of Notes remains outstanding immediately after the occurrence of such
redemption; and provided, further, that such redemption shall occur within 45
days of the date of the closing of such Public Equity Offering.
Section 3.8. Mandatory Redemption.
Except as set forth under Sections 3.9, 4.10 and 4.14 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
36
<PAGE> 53
Section 3.9. Repurchase Offers.
In the event that the Company shall be required to commence an offer
to all Holders to repurchase Notes (a "Repurchase Offer") pursuant to Section
4.10 hereof, an "Excess Proceeds Offer," or pursuant to Section 4.14 hereof, a
"Change of Control Offer," the Company shall follow the procedures specified
below.
A Repurchase Offer shall commence no earlier than 30 days and no
later than 60 days after a Change of Control (unless the Company is not required
to make such offer pursuant to Section 4.14(c) hereof) or an Excess Proceeds
Offer Triggering Event (as defined below), as the case may be, and remain open
for a period of twenty (20) Business Days following its commencement and no
longer, except to the extent that a longer period is required by applicable law
(the "Offer Period"). No later than five (5) Business Days after the termination
of the Offer Period (the "Purchase Date"), the Company shall purchase the
principal amount of Notes required to be purchased pursuant to Section 4.10
hereof, in the case of an Excess Proceeds Offer, or 4.14 hereof, in the case of
a Change of Control Offer (the "Offer Amount") or, if less than the Offer Amount
has been tendered, all Notes tendered in response to the Repurchase Offer.
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to such Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of the Repurchase Offer, shall describe the transaction
or transactions that constitute the Change of Control or Excess Proceeds Offer
Triggering Event, as the case may be and shall state:
(a) that the Repurchase Offer is being made pursuant to this Section
3.9 and Section 4.10 or 4.14 hereof, as the case may be, and the length of time
the Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Liquidated Damages, if any, after the Purchase Date;
37
<PAGE> 54
(e) that Holders electing to have a Note purchased pursuant to a
Repurchase Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note, duly completed,
or transfer by book-entry transfer, to the Company, the Depositary, or the
Paying Agent at the address specified in the notice not later than the close of
business on the last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. (New York City time) on each Purchase Date,
the Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest and Liquidated Damages, if any, thereon, to be held for payment
in accordance with the terms of this Section 3.9. On the Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a pro rata basis
to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
depository, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.9. The Company, the Depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than three (3)
Business Days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, plus any accrued and unpaid interest and
Liquidated Damages, if any, thereon, and the Company shall promptly issue a new
Note, and the Trustee, shall authenticate and mail or deliver such new Note, to
such Holder, equal in principal amount to any unpurchased portion of such
Holder's Notes surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce in a newspaper of general circulation or in a press release provided to
a nationally recognized financial wire service the results of the Repurchase
Offer on the Purchase Date.
38
<PAGE> 55
Other than as specifically provided in this Section 3.9, any
purchase pursuant to this Section 3.9 shall be made pursuant to the provisions
of Sections 3.1, 3.2, 3.5 and 3.6 hereof.
ARTICLE 4.
COVENANTS
Section 4.1. Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on the Notes on the dates and in the manner provided in the
Notes. The Company shall pay all Liquidated Damages, if any, in the same manner
on the dates and in the amounts set forth in the Registration Rights Agreement.
Principal, premium and Liquidated Damages, if any, and interest, shall be
considered paid for all purposes hereunder on the date the Paying Agent if other
than the Company or a Subsidiary thereof holds, as of 10:00 a.m. (New York City
time) money deposited by the Company in immediately available funds and
designated for and sufficient to pay all such principal, premium and Liquidated
Damages, if any, and interest, then due.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful, it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.3 hereof.
39
<PAGE> 56
Section 4.3. Commission Reports.
From and after the earlier of the effective date of the Exchange
Offer Registration Statement or the effective date of the Shelf Registration
Statement, whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company shall furnish to
the Holders of Notes (i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by the Company's certified independent accountants and (ii) all current reports
that would be required to be filed with the Commission on Form 8-K if the
Company were required to file such reports. In addition, whether or not required
by the rules and regulations of the Commission, the Company shall file a copy of
all such information and reports with the Commission for public availability
(unless the Commission will not accept such a filing) within the time periods
that would have been applicable had the Company been subject to such rules and
regulations and make such information available to securities analysts and
prospective investors upon request. In addition, the Company has agreed that,
for so long as any Notes remain outstanding, it shall furnish to the Holders, to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act. The Company shall at all times comply with TIA ss. 314(a).
The financial information to be distributed to Holders of Notes
shall be filed with the Trustee and mailed to the Holders at their addresses
appearing in the register of Notes maintained by the Registrar, within 90 days
after the end of the Company's fiscal years and within 45 days after the end of
each of the first three quarters of each such fiscal year.
The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information and, if requested by
the Company, the Trustee will deliver such reports to the Holders under this
Section 4.3.
Section 4.4. Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture (including, with respect to any Restricted
Payments made during such year, the basis upon which the calculations required
by Section 4.7 hereof were computed, which calculations may be based on the
Company's latest available financial statements), and further stating, as to
each such Officer signing such certificate, that, to the best of his or her
knowledge, each entity has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
40
<PAGE> 57
that, to the best of his or her knowledge, no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium or
Liquidated Damages, if any, or interest on the Notes is prohibited or if such
event has occurred, a description of the event and what action the Company is
taking or proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, in connection with the
year-end financial statements delivered pursuant to Section 4.3 hereof, the
Company shall use its best efforts to deliver a written statement of the
Company's independent public accountants (who shall be a firm of established
national reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that would
lead them to believe that the Company has violated any provisions of Article
Four or Section 5.1 hereof or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation. In the event that such
written statement of the Company's independent public accountants cannot be
obtained, the Company shall deliver an Officers' Certificate certifying that it
has used its best efforts to obtain such statements and was unable to do so.
The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.5. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency all material taxes, assessments and governmental
levies, except such as are contested in good faith and by appropriate
proceedings and with respect to which appropriate reserves have been taken in
accordance with GAAP.
Section 4.6. Stay, Extension and Usury Laws.
The Company and each Subsidiary Guarantor covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each Subsidiary Guarantor (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
41
<PAGE> 58
Section 4.7. Restricted Payments.
From and after the date hereof the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any other payment or distribution on account
of the Company's or any of its Restricted Subsidiaries' Equity Interests
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem
or otherwise acquire or retire for value (including without limitation, in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company; (iii)
make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is pari passu with
or subordinated to the Notes (other than Notes), except a payment of interest or
principal at Stated Maturity; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), unless, at the time of and
after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of the covenant described
below under caption "--Incurrence of Indebtedness and Issuance of Preferred
Stock"; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Subsidiaries after the
date of the Indenture (excluding Restricted Payments permitted by clause (ii)
and (iii) of the next succeeding paragraph), is less than the sum of (i) 50% of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the date of the Indenture to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net
cash proceeds received by the Company from the issue or sale since the date of
the Indenture of Equity Interests of the Company (other than Disqualified Stock)
or of Disqualified Stock or debt securities of the Company that have been
converted into such Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a Subsidiary of the
Company and other than Disqualified Stock or convertible debt securities that
have been converted into Disqualified Stock), plus (iii) to the extent that any
Restricted Investment that was made after the date of the Indenture is sold for
cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash
return of capital with
42
<PAGE> 59
respect to such Restricted Investment (less the cost of disposition, if any) and
(B) the initial amount of such Restricted Investment plus (iv) if any
Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair
market value of such redesignated Subsidiary (as determined in good faith by the
Board of Directors) as of the date of its redesignation or (B) pays any cash
dividends or cash distributions to the Company or any of its Restricted
Subsidiaries, 50% of any such cash dividends or cash distributions made after
the date of the Indenture.
The foregoing provisions will not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of the
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any pari passu or subordinated Indebtedness or Equity Interests
of the Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale or issuance (other than to a Restricted Subsidiary
of the Company) of, other Equity Interests of the Company (other than any
Disqualified Stock); (iii) the defeasance, redemption, repurchase or other
acquisition of pari passu or subordinated Indebtedness with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the
payment of any dividend by a Restricted Subsidiary of the Company to the holders
of its Equity Interests on a pro rata basis; (v) Investments in any Person
(other than the Company or a Wholly-Owned Restricted Subsidiary) engaged in a
Permitted Business in an amount taken together with all other Investments made
pursuant to this clause (v) that are at that time outstanding not to exceed $5.0
million; (vi) other Investments in Unrestricted Subsidiaries having an aggregate
fair market value, taken together with all other Investments made pursuant to
this clause (vi) that are at that time outstanding, not to exceed $2.0 million;
(vii) payments to Holdings or Holberg pursuant to the tax sharing agreement
among Holberg and other members of the affiliated corporations of which Holberg
is the common parent; (viii) the designation of certain of the Company's
Subsidiaries as Unrestricted Subsidiaries immediately prior to the date of the
Indenture; (ix) the payment of a one-time dividend or distribution by the
Company to pay fees, expenses, commissions and discounts in connection with the
offering by Holdings of debt securities used to finance the Preferred Stock
Contribution; (x) the redemption in connection with the Transactions of the
preferred stock of the Company held by Holberg; (xi) the repurchase, redemption
or other acquisition or retirement for value of any Equity Interests of Holdings
or the Company held by any member of Holdings' or the Company's (or any of their
Restricted Subsidiaries) management pursuant to any management equity
subscription agreement or stock option agreement or in connection with the
termination of employment of any employees or management of Holdings or the
Company or their Subsidiaries; provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $2.0 million in the aggregate plus the aggregate cash proceeds received
by Holdings or the Company after the date of the Indenture from any reissuance
of Equity Interests by Holdings or the Company to members of management of
Holdings or the Company and their Restricted Subsidiaries; and (xii) other
Restricted Payments in an aggregate amount not to exceed $10.0 million.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default;
provided that in no event shall the business currently operated by any
Subsidiary Guarantor be transferred to or held by an
43
<PAGE> 60
Unrestricted Subsidiary. For purposes of making such determination, all
outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated will be deemed to
be Restricted Payments at the time of such designaiion and will reduce the
amount available for Restricted Payments under the first paragraph of this
covenant. All such outstanding Investments will be deemed to constitute
Investments in an amount equal to the fair market value of such Investments at
the time of such designation (as determined in good faith by the Board of
Directors). Such designation will only be permitted if such Restricted Payment
would be permitted at such time and if such Restricted Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined in good
faith by the Board of Directors whose resolution with respect thereto shall be
delivered to the Trustee such determination to be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $10.0 million. Not later
than the date of making any Restricted Payment, the Company shall deliver to the
Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
the covenant `tRestricted Paymentstt were computed, together with a copy of any
fairness opinion or appraisal required by the Indenture.
Section 4.8. Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(a) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or
(2) with respect to any other interest or participation in, or measured by, its
profits, or (b) pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries, (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries or (iii) transfer any of its properties or assets to
the Company or any of its Restricted Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of (a) Existing Indebtedness as in
effect on the date of the Indenture, (b) the New Credit Facility as in effect as
of the date of the Indenture, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof; provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacement or refinancings are no more
restrictive in the aggregate (as determined by the Credit Agent in good faith)
with respect to such dividend and other payment restrictions than those
contained in the New Credit Facility as in effect on the date of the Indenture,
(c) the Indenture and the Notes, (d) any applicable law, rule, regulation or
order, (e) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets
44
<PAGE> 61
of any Person, other than the Person, or the property or assets of the Person,
so acquired; provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of the Indenture to be incurred, (f) by reason of
customary non-assignment provisions in leases entered into in the ordinary
course of business and consistent with past practices, (g) purchase money
obligations for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iii) above on the property so
acquired, (h) Permitted Refinancing Indebtedness; provided that the material
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive than those contained in the agreements
governing the Indebtedness being refinanced, (i) contracts for the sale of
assets, including without limitation customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary, and Q) restrictions on cash or other deposits or net worth imposed
by customers under contracts entered into in the ordinary course of business.
Section 4.9. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and that the
Company will not issue any Disqualified Stock and will not permit any of its
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have been at
least 2.0 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred, or the Disqualified Stock had been issued, as the case may
be, at the beginning of such four-quarter period.
The provisions of the first paragraph of this covenant will not
apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(i) the incurrence by the Company of revolving credit Indebtedness
and letters of credit pursuant to New Credit Facility; provided that the
aggregate principal amount of all revolving credit Indebtedness (with letters of
credit being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Subsidiaries thereunder) outstanding under the
New Credit Facility after giving effect to such incurrence does not exceed $40.0
million less the aggregate amount of all Net Proceeds of Asset Sales applied to
repay revolving credit Indebtedness under the New Credit Facility and to
permanently reduce the commitment thereunder pursuant to the covenant described
under Section 4.10;
(ii) the incurrence by the Company and its Restricted Subsidiaries
of the Existing Indebtedness;
(iii) the incurrence by the Company and the Subsidiary Guarantors of
Indebtedness represented by the Notes and the Note Guarantees, respectively;
45
<PAGE> 62
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case incurred for the purpose
of financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business of the Company
or such Restricted Subsidiary (whether through the direct purchase of assets or
the Capital Stock of any Person owning such Assets), in an aggregate principal
amount not to exceed $7.5 million;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in connection with the acquisition of assets or a
new Restricted Subsidiary; provided that such Indebtedness was incurred by the
prior owner of such assets or such Restricted Subsidiary prior to such
acquisition by the Company or one of its Subsidiaries and was not incurred in
connection with, or in contemplation of, such acquisition by the Company or one
of its Subsidiaries; provided further that the principal amount (or accreted
value, as applicable) of such Indebtedness, together with any other outstanding
Indebtedness incurred pursuant to this clause (v), does not exceed $5.0 million;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace Indebtedness that was
permitted by the Indenture to be incurred under the first paragraph hereof or
clauses (i), (ii), (iii), (iv), (v) or (xv) of this paragraph;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and any
of its Wholly Owned Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on such Indebtedness and the payee is not a Subsidiary
Guarantor, such Indebtedness is expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Notes and (ii)(A) any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Wholly Owned
Restricted Subsidiary and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Wholly Owned
Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Company or such Restricted Subsidiary, as the case
may be;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing
or hedging currency risk or interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(ix) the guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be incurred by another provision of this covenant;
(x) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to
constitute an incurrence of
46
<PAGE> 63
Indebtedness by a Restricted Subsidiary of the Company that was not permitted by
this clause (x);
(xi) Indebtedness incurred by the Company or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business, including without limitation
to letters of credit in respect to workers' compensation claims or
self-insurance, surety bonds or other Indebtedness with respect to reimbursement
type obligations regarding workers' compensation claims provided, however, that
upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or incurrence;
(xii) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, asset or Subsidiary, other than guarantees
of Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary for the purpose of financing such acquisition;
provided that the maximum aggregate liability of all such Indebtedness shall at
no time exceed 50% of the gross proceeds actually received by the Company;
(xiii) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary in
the ordinary course of business;
(xiv) guarantees incurred in the ordinary course of business in an
aggregate principal amount not to exceed $5.0 million; and
(xv) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness, including Attributable Debt incurred
after the date of the Indenture, in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any other
Indebtedness incurred pursuant to this clause (xv), not to exceed $25.0 million.
For purposes of determining compliance with this covenant, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xv) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company shall, in its sole discretion, classify such item of Indebtedness in any
manner that complies with this covenant and such item of Indebtedness will be
treated as having been incurred pursuant to only one of such clauses or pursuant
to the first paragraph hereof. The incurrence of Indebtedness pursuant to the
first paragraph of the covenant described above shall not be classified as any
of the Items in clauses (i) through (xv) above. Accrual of interest and the
accretion of accreted value will not be deemed to be an incurrence of
Indebtedness for purposes of this covenant.
47
<PAGE> 64
Section 4.10. Assets Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets or Equity Interests issued or sold or
otherwise disposed of and (ii) at least 80% of the consideration therefor
received by the Company or such Restricted Subsidiary is in the form of cash;
provided that the amount of (x) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet), of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any guarantee thereof) that are
assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further
liability and (y) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash within 180 days
(to the extent of the cash received), shall be deemed to be cash for purposes of
this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds, at its option, (a) to permanently
repay Senior Debt, (and to correspondingly reduce commitments with respect
thereto in the case of revolving borrowings), or (b) to the acquisition of a
controlling interest in another business, the making of a capital expenditure or
the acquisition of other long-term assets and parking facility agreements, in
each case, in a Permitted Business. Pending the final application of any such
Net Proceeds, the Company may temporarily reduce the revolving Indebtedness
under the New Credit Facility or otherwise invest such Net Proceeds in any
manner that is not prohibited by the Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the first sentence of this
paragraph will be deemed to constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $10.0 million, the Company will be required to
make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the
maximum principal amount of Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the date of purchase, in accordance with the procedures set forth in
the Indenture. To the extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on
a pro rata basis. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction,
48
<PAGE> 65
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction")
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $5.0 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
either aggregate consideration in excess of $10.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing; provided that the following shall not be deemed Affiliate
Transactions: (q) the Company's lease on behalf of Holberg of a plane under
arrangements consistent with past practices, (r) the Company's payment of the
fees and expenses of the offering of Holdings' 11__% Senior Discount Notes
due 2008, (s) on or about the Effective Date, the Company's cancellation and
forgiveness of approximately $4.5 million of advances previously made to
Holberg, (t) any employment agreement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
the past practice of the Company or such Restricted Subsidiary, (u) transactions
between or among the Company and/or its Restricted Subsidiaries, (v) Permitted
Investments and Restricted Payments that are permitted by the provisions of
Section 4.7 hereof, (w) customary loans, advances, fees and compensation paid
to, and indemnity provided on behalf of, officers, directors, employees or
consultant of the Company or any of its Restricted Subsidiaries, (x) annual
management fees paid to Holberg not to exceed $5.0 million in any one year, (y)
transaction pursuant to any contract or agreement in effect on the date hereof
as the same may be amended, modified or replaced from time to time so long as
any such amendment, modification or replacement is no less favorable to the
Company and its Restricted Subsidiaries than contract or agreement as in effect
on the Issue Date or is approved by a majority of the disinterested directors of
AP Holdings, Inc., (z) transactions between the Company or its Restricted
Subsidiaries on the one hand, and Holberg on the other hand, involving the
procuring on provision of financial or advisory services by Holberg; provided
that fees and expenses payable to Holberg do not exceed the usual and customary
fees and expenses for similar services, (aa) transactions between the Company or
its Restricted Subsidiaries on the one hand, and DLJ or its Affiliates on the
other hand, involving the provision of financial, advisory, lending, placement
or underwriting services by DLJ; provided that fees payable to DLJ do not exceed
the usual and customary fees of DLJ for similar services, (bb) the insurance
arrangements between AP Holdings, Inc. and its Subsidiaries and an Affiliate of
Holberg that are not less favorable to the Company or any of its Subsidiaries
than those that are in effect on the date hereof provided such arrangements are
conducted in the ordinary course of business consistent with past practices, and
(cc) payments under the tax sharing agreement among Holberg and other members of
the affiliated group of corporations of which it is the common parent.
49
<PAGE> 66
Section 4.12. Liens.
The Company shall not and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind securing trade payables or Indebtedness
that does not constitute Senior Debt (other than Permitted Liens) upon any of
their property or assets, now owned or hereafter acquired.
Section 4.13. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company may enter into a sale and leaseback transaction if (i) the Company
could have (a) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction pursuant to the covenant
described above under the caption "--Incurrence of Additional Indebtedness and
Issuance of Preferred Stock" and (b) incurred a Lien to secure such Indebtedness
pursuant to the covenant described above under the caption "--Liens," (ii) the
gross cash proceeds of such sale and leaseback transaction are at least equal to
the fair market value (as determined in good faith by the Board of Directors and
set forth in an Officers' Certificate delivered to the Trustee) of the property
that is the subject of such sale and leaseback transaction and (iii) the
transfer of assets in such sale and leaseback transaction is permitted by, and
the Company applies the proceeds of such transaction in compliance with, the
covenant described hereof under Section 4.10."
Section 4.14. Offer to Purchase Upon Change of Control.
Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of purchase
(the "Change of Control Payment"). Within 30 days following any Change of
Control, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes on the date specified in such notice, which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date"), pursuant to the procedures
required by Section 3.9 hereof and described in such notice. The Company shall
comply with the requirements of Rule 1 4e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control.
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent will promptly mail to each Holder of Notes so tendered
the Change of Control
50
<PAGE> 67
Payment for such Notes, and the Trustee will promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any;
provided that each such new Note will be in a principal amount of $1,000 or an
integral multiple thereof. Prior to complying with the provisions of this
Section 4.14, but in any event within 90 days following a Change of Control, the
Company shall either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Notes required by this Section 4.14. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Change of Control provisions described above will be applicable
whether or not any other provisions of this Indenture are applicable. Except as
described above with respect to a Change of Control, this Indenture does not
contain provisions that permit the Holders of the Notes to require that the
Company repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth herein applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
Section 4.15. Corporate Existence.
Subject to Section 4.14 and Article 5 hereof, as the case may be,
the Company and each Subsidiary Guarantor shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each of its
Subsidiaries in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such Subsidiary and
the rights (charter and statutory), licenses and franchises of the Company and
its Subsidiaries; provided that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the Holders
of the Notes.
Section 4.16. Limitation on Issuances of Capital Stock of Wholly Owned
Restricted Subsidiaries.
The Company (i) shall not, and shall not permit any Wholly Owned
Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Wholly Owned Subsidiary of the
Company to any Person (other than the Company or a Wholly Owned Restricted
Subsidiary of the Company), unless (a) such transfer, conveyance, sale, lease or
other disposition is of all the Capital Stock of such Wholly Owned Restricted
Subsidiary and (b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with Section 4.10 hereof
and (ii) will not permit any
51
<PAGE> 68
Wholly Owned Restricted Subsidiary of the Company to issue any of its Equity
Interests (other than, if necessary, shares of its Capital Stock constituting
directors' qualifying shares) to any Person other than to the Company or a
Wholly Owned Restricted Subsidiary of the Company.
Section 4.17. Limitations on Issuances of Guarantees of Indebtedness.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Company unless either such Restricted Subsidiary (x) is a
Subsidiary Guarantor or (y) simultaneously executes and delivers a supplemental
indenture to the Indenture providing for the Guarantee of the payment of the
Notes by such Restricted Subsidiary, which Guarantee shall be senior to or pari
passu with such Restricted Subsidiary's Guarantee of or pledge to secure such
other Indebtedness. Notwithstanding the foregoing, any such Guarantee by a
Restricted Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon any sale,
exchange or transfer, to any Person not an Affiliate of the Company, of all of
the Company's stock in, or all or substantially all the assets of, such
Restricted Subsidiary, which sale, exchange or transfer is made in compliance
with the applicable provisions hereof. The form and substance of such Guarantee
shall be substantially similar to EXHIBIT D hereto.
Section 4.18. Business Activities.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than Permitted Businesses, except to
such extent as would not be material to the Company and its Restricted
Subsidiaries taken as a whole.
Section 4.19. Additional Guarantees.
If (i) the Company or any of its Restricted Subsidiaries shall,
after the date hereof, transfer or cause to be transferred, including by way of
any Investment, in one or a series of transactions (whether or not related), any
assets, businesses, divisions, real property or equipment having an aggregate
fair market value (as determined in good faith by the Board of Directors) in
excess of $1.0 million to any Restricted Subsidiary that is not a Subsidiary
Guarantor or a foreign Subsidiary, (ii) the Company or any of its Restricted
Subsidiaries shall acquire another Restricted Subsidiary other than a foreign
Subsidiary having total assets with a fair market value (as determined in good
faith by the Board of Directors) in excess of $1.0 million, or (iii) any
Restricted Subsidiary other than a foreign Subsidiary shall incur Acquired Debt
in excess of $1.0 million, then the Company shall, at the time of such transfer,
acquisition or incurrence, (A) cause such transferee, acquired Restricted
Subsidiary or Restricted Subsidiary incurring Acquired Debt (if not then a
Subsidiary Guarantor) to execute a Note Guarantee of the Obligations of the
Company under the Notes in the form and substance substantially similar to
EXHIBIT D hereto and (B) deliver to the Trustee an Opinion of Counsel, in form
reasonably satisfactory to the Trustee, that such Note Guarantee is a valid,
binding and enforceable obligation of such transferee, acquired Restricted
Subsidiary or Restricted Subsidiary incurring Acquired Debt, subject to
customary exceptions for bankruptcy, fraudulent conveyance and equitable
principles. Notwithstanding the foregoing, the Company or any of its Restricted
Subsidiaries may make a
52
<PAGE> 69
Restricted Investment in any Wholly Owned Restricted Subsidiary of the Company
without compliance with this Section 4.19, provided that such Restricted
Investment is permitted by Section 4.7 hereof.
Section 4.20. Payment for Consents.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions hereof or
the Notes unless such consideration is offered to be paid or is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
Section 4.21. Anti-Layering.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is both (a) subordinate or
junior in right of payment to any Senior Debt and (b) senior in any respect in
right of payment to the Notes. No Subsidiary Guarantor shall incur, create,
issue, assume, guarantee or otherwise become liable for any Indebtedness that is
both (a) subordinate or junior in right of payment to its Senior Debt and (b)
senior in right of the Section 4.9 hereof.
ARTICLE 5.
SUCCESSORS
Section 5.1 Merger, Consolidation of Sale of Assets.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the Notes
and this Indenture pursuant to a supplemental indenture in a form substantially
similar to EXHIBIT E hereto; (iii) immediately after such transaction no Default
or Event of Default exists; (iv) except in the case of a merger of the Company
with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or
the entity or Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made will, at the time of such
transaction and after giving pro forma effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter period,
53
<PAGE> 70
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of the Section
4.9 hereof.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and shall exercise every
right and power of the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein; provided, that, (i)
solely for the purposes of computing Consolidated Net Income for purposes of
clause (b) of the first paragraph of Section 4.7 hereof, the Consolidated Net
Income of any person other than the Company and its Subsidiaries shall be
included only for periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets; and (ii) in the case of any
sale, assignment, transfer, lease, conveyance, or other disposition of less than
all of the assets of the predecessor Company, the predecessor Company shall not
be released or discharged from the obligation to pay the principal of or
interest and Liquidated Damages, if any, on the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest
on, or Liquidated Damages with respect to, the Notes;
(ii) default in payment when due of principal of or premium,
if any, on the Notes;
(iii) failure by the Company to comply with the provisions
described under Sections 4.10 or 4.14 or Article 5 hereof;
(iv) failure by the Company for 30 days after notice from the
Trustee or at least 30% in principal amount of the Notes then outstanding to
comply with the provisions described under Sections 4.7 or 4.9 hereof;
(v) failure by the Company for 60 days after notice from the
Trustee or at least 25% in principal amount of the Notes then outstanding to
comply with any of its other agreement in this Indenture or the Notes;
54
<PAGE> 71
(vi) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Subsidiaries)
whether such Indebtedness or Guarantee now exists, or is created after the date
hereof, which default (a) is caused by a failure to pay principal of or premium,
if any, or interest on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a "Payment
Default") or (b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $15.0 million or more;
(vii) failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $5.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days;
(viii) the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, pursuant to or within the meaning of Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(f) is for relief against the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case;
(g) appoints a Custodian of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary;
or
(h) orders the liquidation of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; and the order or decree remains unstayed
and in effect for 60 consecutive days.
55
<PAGE> 72
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Section 6.2. Acceleration.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately provided, however, that
if any Indebtedness or Obligation is outstanding pursuant to the New Credit
Facility, upon a declaration of acceleration by the holders of the Notes or the
Trustee, all principal and interest under this Indenture shall be due and
payable upon the earlier of (x) the day five Business Days after the provision
to the Company, the Credit Agent and the Trustee of such written notice of
acceleration or (y) the date of acceleration of any Indebtedness under the New
Credit Facility; and provided, further, that in the event of an acceleration
based upon an Event of Default set forth in clause (vi) above, such declaration
of acceleration shall be automatically annulled if the holders of Indebtedness
which is the subject of such failure to pay at maturity or acceleration have
rescinded their declaration of acceleration in respect of such Indebtedness or
such failure to pay at maturity shall have been cured or waived within 30 days
thereof and no other Event of Default has occurred during such 30-day period
which has not been cured, paid or waived. Notwithstanding the foregoing, in the
case of an Event of Default as described in (viii) and (ix) of Section 6.1
hereof, all outstanding Notes will become due and payable without further action
or notice. Holders of the Notes may not enforce this Indenture or the Notes
except as provided in this Indenture.
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant to
the optional redemption provisions of Section 3.7(a) hereof, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes. If an Event of Default
occurs prior to March 15, 2003 by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the Notes prior to March 15, 2003,
then the amount payable in respect of such Notes for purposes of this paragraph
for each of the twelve-month periods beginning on March 15 of the years
indicated below shall be set forth below, expressed as percentages of the
principal amount that would otherwise be due but for the provisions of this
sentence, plus accrued and unpaid interest and Liquidated Damages, if any, to
the date of payment:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
1998............................................109.250%
1999............................................108.325%
2000............................................107.400%
2001............................................106.475%
2002............................................105.550%
</TABLE>
56
<PAGE> 73
Section 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, interest and Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
Section 6.4. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under this Indenture (including any acceleration (other than an automatic
acceleration resulting from an Event of Default under clause (viii) or (ix) of
Section 6.1 hereof) except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes (other than as a result
of an acceleration), which shall require the consent of all of the Holders of
the Notes then outstanding.
Section 6.5. Control by Majority.
The Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust power conferred on it. However, (i) the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability, and (ii) the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. In case an Event of Default shall occur (which shall not be cured),
the Trustee will be required, in the exercise of its power, to use the degree of
care of a prudent man in the conduct of his own affairs. Notwithstanding any
provision to the contrary in this Indenture, the Trustee is under no obligation
to exercise any of its rights or powers under this Indenture at the request of
any Holder of Notes, unless such Holder shall offer to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
57
<PAGE> 74
Section 6.6. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture, the Note Guarantees or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from the
Company;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.7. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, premium, if any, interest,
and Liquidated Damages, if any, on the Note, on or after the respective due
dates expressed in the Note (including in connection with an offer to purchase),
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Liquidated Damages, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings
58
<PAGE> 75
relative to the Company (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other securities or property payable or deliverable upon
the conversion or exchange of the Notes or on any such claims and any Custodian
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, interest, and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any, interest, and
Liquidated Damages, if any, respectively;
Third: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture and the Notes; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its
59
<PAGE> 76
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.7
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing of which a
Responsible Officer of the Trustee has knowledge, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture or the TIA and the Trustee need perform
only those duties that are specifically set forth in this Indenture or the TIA
and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5 hereof.
60
<PAGE> 77
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely on the truth of the statements
and correctness of the opinions contained in, and shall be protected from acting
or refraining from acting upon, any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. Prior to taking, suffering or
admitting any action, the Trustee may consult with counsel of the Trustee's own
choosing and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Subsidiary
Guarantor shall be sufficient if signed by an Officer of the Company or
Subsidiary Guarantor, as applicable.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
61
<PAGE> 78
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner of Notes and may otherwise deal with the Company, the Subsidiary
Guarantors or any Affiliate of the Company or any Subsidiary Guarantor with the
same rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the Commission for permission to continue as Trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
Section 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, the Note Guarantees or the
Notes, it shall not be accountable for the Company's use of the proceeds from
the Notes or any money paid to the Company or upon the Company's direction under
any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it
is known to a Responsible Officer of the Trustee, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in payment
on any Note pursuant to Section 6.1(i) or (ii) hereof, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.6. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b). The Trustee shall also transmit by mail all reports as required by TIA
ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Company has informed the Trustee in writing the
Notes are listed in accordance with TIA ss. 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange and of any
delisting thereof.
62
<PAGE> 79
Section 7.7. Compensation And Indemnity.
The Company and the Subsidiary Guarantors shall pay to the Trustee
from time to time reasonable compensation for its acceptance of this Indenture
and services hereunder. To the extent permitted by law, the Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company and the Subsidiary Guarantors shall indemnify the
Trustee against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company and the Subsidiary Guarantors (including this
Section 7.7) and defending itself against any claim (whether asserted by the
Company, the Subsidiary Guarantors or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company and the Subsidiary Guarantors promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Company and the
Subsidiary Guarantors shall not relieve the Company and the Subsidiary
Guarantors of its obligations hereunder. The Company and the Subsidiary
Guarantors shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company and the
Subsidiary Guarantors shall pay the reasonable fees and expenses of such
counsel. The Company and the Subsidiary Guarantors need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Subsidiary Guarantors under
this Section 7.7 shall survive the satisfaction and discharge of this Indenture.
To secure the Company's and the Subsidiary Guarantors' payment
obligations in this Section 7.7, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal, interest and Liquidated Damages, if any, on
particular Notes. Such Lien shall survive the satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1 (viii) or (ix) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
63
<PAGE> 80
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.8.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and the duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
that all sums owing to the Trustee hereunder have been paid and subject to the
Lien provided for in Section 7.7 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Company's obligations under Section
7.7 hereof shall continue for the benefit of the retiring Trustee.
64
<PAGE> 81
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee or any Agent consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee or any Agent, as applicable.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities. The Trustee and its direct parent shall at all
times have a combined capital surplus of at least $50.0 million as set forth in
its most recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11. Preferential Collection of Claims Against The Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company and the Subsidiary Guarantors may, at the option of
their respective Boards of Directors evidenced by a resolution set forth in an
Officers' Certificate, at any time, elect to have either Section 8.2 or 8.3
hereof be applied to all outstanding Notes and Note Guarantees upon compliance
with the conditions set forth below in this Article 8.
Section 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Company and each Subsidiary Guarantor shall,
subject to the satisfaction of the conditions set forth in Section 8.4 hereof,
be deemed to have been discharged from their respective obligations with respect
to all outstanding Notes and Note Guarantees on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and each Subsidiary Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes and Note Guarantees, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.5 hereof and the other Sections
of this Indenture referred to in (a) and (b) below, and to have satisfied all
their respective other obligations under such Notes and Note Guarantees and
65
<PAGE> 82
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, premium, if any, and interest and
Liquidated Damages, if any, on such Notes when such payments are due from the
trust referred to in Section 8.4(a); (b) the Company's obligations with respect
to such Notes under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2 hereof;
(c) the rights, powers, trusts, duties and immunities of the Trustee including
without limitation thereunder Section 7.7, 8.5 and 8.7 hereof and the Company's
obligations in connection therewith and (d) the provisions of this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 hereof.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, the Company and each Subsidiary Guarantor shall,
subject to the satisfaction of the conditions set forth in Section 8.4 hereof,
be released from its obligations under the covenants contained in Sections 3.9,
4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19,
5.1 and 11.1 hereof with respect to the outstanding Notes and Note Guarantees on
and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes and Note Guarantees shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes and Note
Guarantees shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes
and Note Guarantees, the Company or any of its Subsidiaries may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.1 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, subject to the satisfaction of the conditions
set forth in Section 8.4 hereof, Sections 6.1(iii) through 6.1(v) hereof shall
not constitute Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes and Note Guarantees:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable
Government Securities, or
66
<PAGE> 83
a combination thereof, in such amounts as shall be sufficient, in the opinion of
a nationally recognized firm of independent public accountants, to pay the
principal of, premium and Liquidated Damages, if any, and interest on the
outstanding Notes on the stated maturity or on the applicable redemption date,
as the case may be, and the Company must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.2 hereof, the Company
shall have delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date hereof, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such opinion of counsel shall confirm that, the Holders of the outstanding Notes
shall not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and shall be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the Company
shall have delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes shall not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or insofar
as Events of Default from bankruptcy or insolvency events are concerned, at any
time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under any material agreement
or instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an opinion of
counsel to the effect that after the 91st day following the deposit, the trust
funds shall not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of Notes over the other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
67
<PAGE> 84
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.5. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, interest and
Liquidated Damages, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.4 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the written
request of the Company and be relieved of all liability with respect to any
money or non-callable Government Securities held by it as provided in Section
8.4 hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.4(a) hereof), are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6. Repayment to The Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, interest or Liquidated Damages, if any, on any Note and remaining unclaimed
for one year after such principal, and premium, if any, or interest or
Liquidated Damages, if any, has become due and payable shall be paid to the
Company on its written request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note 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 the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30
68
<PAGE> 85
days from the date of such notification or publication, any unclaimed balance of
such money then remaining shall be repaid to the Company.
Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or noncallable Government Securities in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company and the Subsidiary Guarantors
under this Indenture, the Notes and the Note Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3
hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.2 or 8.3 hereof, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
premium, if any, interest or Liquidated Damages, if any, on any Note following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of the Notes.
Notwithstanding Section 9.2 of this Indenture, without the consent
of any Holder of Notes the Company and the Trustee may amend or supplement this
Indenture, the Notes or the Note Guarantees:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to provide for the assumption of the Company's or a Subsidiary
Guarantor's obligations to the Holders of the Notes in the case of a merger, or
consolidation pursuant to Article 5 or Article 11 hereof, as applicable;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights hereunder of any Holder of the Notes;
(e) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA;
(f) to issue additional Notes hereunder; provided that the aggregate
principal amount of Notes issued hereunder shall not exceed $200 million; or
(g) to allow any Subsidiary to Guarantee the Notes.
69
<PAGE> 86
Upon the written request of the Company accompanied by a resolution
of its Board of Directors of the Company authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof, the Trustee shall join with the
Company and the Subsidiary Guarantors in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.2. With Consent of Holders of Notes.
Except as provided below in this Section 9.2, or as provided in
Section 10.13 or Section 12.13, this Indenture, the Notes or the Note Guarantees
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer, for Notes), and, any existing default or compliance with any
provision of this Indenture, the Notes or the Note Guarantees may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with or a tender
offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.6 hereof, the Trustee shall
join with the Company and the Subsidiary Guarantors in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may, but shall not be obligated to, enter
into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.2 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.2 becomes
effective, the Company shall mail to the Holders of each Note affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
Subject to Sections 6.2, 6.4, 6.7, 10.13 and 12.13 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may amend or waive compliance in a particular instance by the
Company or the Subsidiary Guarantors with any provision of this Indenture, the
Notes or the Note Guarantees. However, without the consent of each Holder
affected, an amendment, or waiver may not (with respect to any Note held by a
non-consenting Holder):
70
<PAGE> 87
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes (other than
provisions relating to Sections 3.9, 4.10 and 4.14 hereof);
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in Section 6.4 or 6.7 hereof;
(g) waive a redemption or repurchase payment with respect to any
Note (other than a payment required by Section 4.10 or 4.14 hereof); or
(h) make any change in the amendment and waiver provisions of this
Article 9.
Section 9.3. Compliance with Trust Indenture Act
Every amendment or supplement to this Indenture, the Note Guarantees
or the Notes shall be set forth in an amended or supplemental indenture that
complies with the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. When an amendment, supplement or waiver becomes effective in
accordance with its terms, it thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date
for determining which Holders of the Notes must consent to such amendment,
supplement or waiver. If the Company fixes a record date, the record date shall
be fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders of Notes furnished for
the Trustee prior to such solicitation pursuant to Section 2.5 hereof or (ii)
such other date as the Company shall designate.
71
<PAGE> 88
Section 9.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company and the Subsidiary Guarantors may not sign an amendment or
supplemental indenture until their respective Boards of Directors approve it. In
signing or refusing to sign any amended or supplemental indenture the Trustee
shall be entitled to receive and (subject to Section 7.1 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section 11.4
hereof, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture is authorized or permitted
by this Indenture, that it is not inconsistent herewith, and that it will be
valid and binding upon the Company and the Subsidiary Guarantors in accordance
with its terms.
ARTICLE 10.
SUBORDINATION
Section 10.1. Agreement to Subordinate.
The Company agrees, and each Holder of Notes by accepting a Note
agrees, that the Indebtedness evidenced by the Note is subordinated in right of
payment, to the extent and in the manner provided in this Article, to the prior
payment in full of all Senior Debt (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the subordination
is for the benefit of the holders of Senior Debt.
Section 10.2. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors in any
Insolvency or Liquidation Proceeding with respect to the Company, all amounts
due or to become due under or with respect to all Senior Debt shall first be
paid in full in cash or cash equivalents before any payment is made on account
of the Notes and all other Obligations with respect thereto, except that the
Holders of Notes may receive Reorganization Securities. Upon any such Insolvency
or Liquidation Proceeding, any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities (other than
Reorganization Securities), to which the Holders of the Notes or the Trustee
would be entitled shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
72
<PAGE> 89
distribution, or by the Holders of the Notes or by the Trustee if received by
them, directly to the holders of Senior Debt (pro rata to such holders on the
basis of the amounts of Senior Debt held by such holders) or their
Representative or Representatives, as their interests may appear, for
application to the payment of the Senior Debt remaining unpaid until all such
Senior Debt has been paid in full in cash, after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Senior
Debt.
Section 10.3. Default on Designated Senior Debt.
(a) In the event of and during the continuation of any default in
the payment of principal of, interest or premium, if any, on any Senior Debt, or
any Obligation owing from time to time under or in respect of Senior Debt, or in
the event that any event of default (other than a payment default) with respect
to any Senior Debt shall have occurred and be continuing and shall have resulted
in such Senior Debt becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, or
(b) if any event of default other than as described in clause (a)
above with respect to any Designated Senior Debt shall have occurred and be
continuing permitting the holders of such Designated Senior Debt (or their
Representative or Representatives) to declare such Designated Senior Debt due
and payable prior to the date on which it would otherwise have become due and
payable, then no payment shall be made by or on behalf of the Company on account
of the Notes (other than payments in the form of Reorganization Securities) (x)
in case of any payment or nonpayment default specified in (a), unless and until
such default shall have been cured or waived in writing in accordance with the
instruments governing such Senior Debt or such acceleration shall have been
rescinded or annulled, or (y) in case of any nonpayment event of default
specified in (b), during the period (a "Payment Blockage Period") commencing on
the date the Company and the Trustee receive written notice (a "Payment Notice")
of such event of default specifically referring to this Article 10 (which notice
shall be binding on the Trustee and the Holders of Notes as to the occurrence of
such a payment default or nonpayment event of default) from the Credit Agent (or
other holders of Designated Senior Debt or their Representative or
Representatives) and ending on the earliest of (A) 179 days after such date, (B)
the date, if any, on which the Trustee receives written notice from the Credit
Agent (or other holders of Designated Senior Debt or their Representative or
Representatives), as the case may be, stating that such Designated Senior Debt
to which such default relates is paid in full in cash or such default is cured
or waived in writing in accordance with the instruments governing such
Designated Senior Debt by the holders of such Designated Senior Debt and (C) the
date on which the Trustee receives written notice from the Credit Agent (or
other holders of Designated Senior Debt or their Representative or
Representatives), as the case may be, terminating the Payment Blockage Period.
During any consecutive 360-day period, the aggregate of all Payment Blockage
Periods shall not exceed 179 days and there shall be a period of at least 181
consecutive days in each consecutive 360-day period when no Payment Blockage
Period is in effect. No event of default which existed or was continuing with
respect to the Senior Debt for which notice commencing a Payment Blockage Period
was given on the date such Payment Blockage Period commenced shall be or be made
the basis for the commencement of any
73
<PAGE> 90
subsequent Payment Blockage Period unless such event of default is cured or
waived for a period of not less than 90 consecutive days.
Section 10.4. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
Section 10.5. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder of a Note receives any
payment of any Obligations with respect to the Notes at a time when such payment
is prohibited by Section 10.3 hereof, such payment shall be held by the Trustee
or such Holder, in trust for the benefit of, and shall be paid forthwith over
and delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders of the Notes or
the Company or any other Person money or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article 10, except if such payment is
made as a result of the willful misconduct or gross negligence of the Trustee.
Section 10.6. Notice by the Company.
The Company shall promptly notify the Trustee and the Paying Agent
of any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article, which notice shall
specifically refer to this Article 10, but failure to give such notice shall not
affect the subordination of the Notes to the Senior Debt as provided in this
Article.
Section 10.7. Subrogation.
After all Senior Debt is paid in full and until the Notes are paid
in full, Holders of the Notes shall be subrogated (equally and ratably with all
other pari passu indebtedness) to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders of the Notes have been applied to the payment
of Senior Debt. A distribution made under this Article to holders of Senior Debt
that otherwise would have been made to Holders of the Notes is not, as between
the Company and Holders of the Notes, a payment by the Company on the Notes.
74
<PAGE> 91
Section 10.8. Relative Rights.
This Article defines the relative rights of Holders of the Notes and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of the Notes, the
obligations of the Company, which are absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of the Notes and creditors
of the Company other than their rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder of the Notes from exercising
its available remedies upon a Default or Event of Default, subject to the rights
of holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders of the Notes.
If the Company fails because of this Article to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
Section 10.9. Subordination May Not Be Impaired by the Company.
No right of any holder of Senior Debt to enforce the subordination
of the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or any Holder or by the failure of the Company or
any Holder to comply with this Indenture.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt, or any of them, may, at any time and from
time to time, without the consent of or notice to the Holders of the Notes,
without incurring any liabilities to any Holder of any Notes and without
impairing or releasing the subordination and other benefits provided in this
Indenture or the obligations of the Holders of the Notes to the holders of the
Senior Debt, even if any right of reimbursement or subrogation or other right or
remedy of any Holder of Notes is affected, impaired or extinguished thereby, do
any one or more of the following:
(1) change the manner, place or terms of payment or change or extend
the time of payment of, or renew, exchange, amend, increase or alter, the terms
of any Senior Debt, any security therefor or guaranty thereof or any liability
of any obligor thereon (including any guarantor) to such holder, or any
liability incurred directly or indirectly in respect thereof or otherwise amend,
renew, exchange, extend, modify, increase or supplement in any manner any Senior
Debt or any instrument evidencing or guaranteeing or securing the same or any
agreement under which Senior Debt is outstanding;
(2) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any property pledged,
mortgaged or otherwise securing
75
<PAGE> 92
Senior Debt or any liability of any obligor thereon, to such holder, or any
liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any Senior Debt or any other liability of
any obligor of the Senior Debt to such holder or any security therefor or any
liability incurred directly or indirectly in respect thereof and apply any sums
by whomsoever paid and however realized to any liability (including, without
limitation, Senior Debt) in any manner or order; and
(4) fail to take or to record or to otherwise perfect, for any
reason or for no reason, any lien or security interest securing Senior Debt by
whomsoever granted, exercise or delay in or refrain from exercising any right or
remedy against any obligor or any guarantor or any other person, elect any
remedy and otherwise deal freely with any obligor and any security for the
Senior Debt or any liability of any obligor to such holder or any liability
incurred directly or indirectly in respect thereof.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred
to in this Article 10, the Trustee and the Holders of the Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of the Notes for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Debt and other Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least three Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article, which notice shall
specifically refer to this Article 10. Only the Company or a Representative may
give the notice. Nothing in this Article 10 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
76
<PAGE> 93
Section 10.12. Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes, including without limitation the timely filing of a
claim for the unpaid balance of the Notes held by such Holder in the form
required in any Insolvency or Liquidation Proceeding and causing such claim to
be approved. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.9 hereof at
least 30 days before the expiration of the time of such claim, the
Representatives of the Designated Senior Debt, including the Credit Agent, are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Notes.
Section 10.13. Amendments.
Any amendment to the provisions of this Article 10 shall require the
consent of the Holders of at least 75% in aggregate amount of Notes then
outstanding if such amendment would adversely affect the rights of the Holders
of Notes.
ARTICLE 11.
GUARANTEE OF NOTES
Sectiuon 11.1 Note Guarantee.
Subject to Section 11.6 hereof, each of the Subsidiary Guarantors
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes and the Obligations of the Company hereunder and
thereunder, that: (a) the principal of, premium, if any, interest and Liquidated
Damages, if any, on the Notes will be promptly paid in full when due, subject to
any applicable grace period, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium, if any, (to the
extent permitted by law) interest on any interest, if any, and Liquidated
Damages, if any, on the Notes, and all other payment Obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be promptly paid in
full and performed, all in accordance with the terms hereof and thereof, and (b)
in case of any extension of time of payment or renewal of any Notes or any of
such other Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so guaranteed
for whatever reason the Subsidiary Guarantors will be jointly and severally
obligated to pay the same immediately. An Event of Default under this Indenture
or the Notes shall constitute an event of default under the Note Guarantees, and
shall entitle the Holders to accelerate the Obligations of the Subsidiary
Guarantors hereunder in the same manner and to the same extent as the
Obligations of the Company. The Subsidiary Guarantors hereby agree that their
Obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder
77
<PAGE> 94
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Subsidiary Guarantor. Each Subsidiary Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that this Note Guarantee will not be discharged except by complete performance
of the Obligations contained in the Notes and this Indenture. If any Holder or
the Trustee is required by any court or otherwise to return to the Company, the
Subsidiary Guarantors, or any Note Custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or the Subsidiary
Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled
to, and hereby waives, any right of subrogation in relation to the Holders in
respect of any Obligations guaranteed hereby. Each Subsidiary Guarantor further
agrees that, as between the Subsidiary Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article 6 for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such Obligations as provided in Article 6 hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by the Subsidiary
Guarantors for the purpose of this Note Guarantee. The Subsidiary Guarantors
shall have the right to seek contribution from any non-paying Subsidiary
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Note Guarantees.
Section 11.2. Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 11.1, each
Subsidiary Guarantor hereby agrees that a notation of such Note Guarantee
substantially in the form of EXHIBIT D shall be endorsed by an Officer of such
Subsidiary Guarantor on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of such Subsidiary Guarantor, by
manual or facsimile signature, by an Officer of such Subsidiary Guarantor.
Each Subsidiary Guarantor hereby agrees that its Note Guarantee set
forth in Section 11.1 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantors.
78
<PAGE> 95
Section 11.3. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture shall prohibit a merger between a Subsidiary
Guarantor and another Subsidiary Guarantor or a merger between a Subsidiary
Guarantor and the Company.
(b) Subject to Section 11.4 hereof, no Subsidiary Guarantor may
consolidate with or merge with or into (whether or not such Subsidiary Guarantor
is the surviving Person), another corporation, Person or entity whether or not
affiliated with such Subsidiary Guarantor unless, subject to the provisions of
the following paragraph, (i) the Person formed by or surviving any such
consolidation or merger (if other than such Subsidiary Guarantor) assumes all
the obligations of such Subsidiary Guarantor pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee, under
the Notes and this Indenture; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; (iii) such Subsidiary
Guarantor, or any Person formed by or surviving any such consolidation or
merger, would have Consolidated Net Worth (immediately after giving effect to
such transaction), equal to or greater than the Consolidated Net Worth of such
Subsidiary Guarantor immediately preceding the transaction; and (iv) the Company
would be permitted by virtue of its pro forma Fixed Charge Coverage Ratio,
immediately after giving effect to such transaction, to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.9. The requirements of clauses (iii)
and (iv) of this paragraph will not apply in the case of a consolidation with or
merger with or into any other Person if the acquisition of all of the Equity
Interests in such Person would have complied with the provisions of Sections 4.7
and 4.9 hereof.
(c) In the case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and substantially in the form
of EXHIBIT E hereto, of the Note Guarantee endorsed upon the Notes and the due
and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Subsidiary Guarantor, such successor Person
shall succeed to and be substituted for the Subsidiary Guarantor with the same
effect as if it had been named herein as a Subsidiary Guarantor; provided that,
solely for purposes of computing Consolidated Net Income for purposes of clause
(b) of the first paragraph of Section 4.7 hereof, the Consolidated Net Income of
any Person other than the Company and its Restricted Subsidiaries shall only be
included for periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets. Such successor Person
thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All of the Note
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
79
<PAGE> 96
Section 11.4. Releases Following Sale of Assets, Merger, Sale of Capital Stock
Etc.
In the event (a) of a sale or other disposition of all of the assets
of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the capital stock of any Subsidiary
Guarantor, or (b) that the Company designates a Subsidiary Guarantor to be an
Unrestricted Subsidiary, or such Subsidiary Guarantor ceases to be a Subsidiary
of the Company, then such Subsidiary Guarantor (in the event of a sale or other
disposition, by way of such a merger, consolidation or otherwise, of all of the
capital stock of such Subsidiary Guarantor or any such designation) or the
entity acquiring the property (in the event of a sale or other disposition of
all of the assets of such Subsidiary Guarantor) shall be released and relieved
of any obligations under its Note Guarantee; provided that the Net Proceeds of
such sale or other disposition are applied in accordance with the provisions of
Section 4.10 and, if applicable, Section 4.14 hereof. In the case of a sale,
assignment, lease, transfer, conveyance or other disposition of all or
substantially all of the assets of a Subsidiary Guarantor, upon the assumption
provided for in clause (i) of the Section 11.3(b) hereof, such Subsidiary
Guarantor shall be discharged from all further liability and obligation under
this Indenture. Upon delivery by the Company to the Trustee of an Officers'
Certificate to the effect of the foregoing, the Trustee shall execute any
documents reasonably required in order to evidence the release of any Subsidiary
Guarantor from its Obligation under its Note Guarantee. Any Subsidiary Guarantor
not released from its Obligations under its Note Guarantee shall remain liable
for the full amount of principal of, premium, if any, interest and Liquidated
Damages, if any, on the Notes and for the other Obligations of such Subsidiary
Guarantor under the Indenture as provided in this Article 11.
Section 11.5. Additional Subsidiary Guarantors.
Any Person that was not a Subsidiary Guarantor on the date of this
Indenture may become a Subsidiary Guarantor by executing and delivering to the
Trustee (a) a supplemental indenture in substantially the form of EXHIBIT E, and
(b) an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such Person and constitutes the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning creditors rights', fraudulent transfers, public
policy and equitable principles as may be acceptable to the Trustee in its
discretion).
Section 11.6. Limitation on Subsidiary Guarantor Liability.
For purposes hereof, each Subsidiary Guarantor's liability shall be
limited to the lesser of (i) the aggregate amount of the Obligations of the
Company under the Notes and this Indenture and (ii) the amount, if any, which
would not have (A) rendered such Subsidiary Guarantor insolvent" (as such term
is defined in the United States Bankruptcy Code and in the Debtor and Creditor
Law of the State of New York) or (B) left such Subsidiary Guarantor with
unreasonably small capital at the time its Note Guarantee of the Notes was
entered into; provided that, it will be a presumption in any lawsuit or other
proceeding in which a Subsidiary Guarantor is a party that the amount guaranteed
pursuant to the Note Guarantee is the amount set forth in clause (i) above
unless any creditor, or representative of creditors of such Subsidiary
Guarantor,
80
<PAGE> 97
or debtor in possession or trustee in bankruptcy of the Subsidiary Guarantor,
otherwise proves in such a lawsuit that the aggregate liability of the
Subsidiary Guarantor is the amount set forth in clause (ii) above. In making any
determination as to solvency or sufficiency of capital of a Subsidiary Guarantor
in accordance with the previous sentence, the right of such Subsidiary Guarantor
to contribution from other Subsidiary Guarantors, and any other rights such
Subsidiary Guarantor may have, contractual or otherwise, shall be taken into
account.
Section 11.7. "Trustee" to Include Paying Agent.
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 11 shall in each case (unless the context
shall otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully and for all intents and purposes as if such
Paying Agent were named in this Article 11 in place of the Trustee.
ARTICLE 12.
SUBORDINATION OF NOTE GUARANTEE
Section 12.1 Agreement to Subordinate.
The Subsidiary Guarantors agree, and each Holder by accepting a Note
agrees, that all Note Guarantee Obligations, shall be subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full of all Guarantor Senior Debt, whether outstanding on the
date hereof or thereafter incurred and that the subordination is for the benefit
of the holders of Guarantor Senior Debt.
Section 12.2. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution of assets of the Subsidiary
Guarantors of any kind or character, whether in cash, property or securities, to
creditors in any Insolvency or Liquidation Proceeding with respect to any
Subsidiary Guarantor all amounts due or to become due under or with respect to
all Guarantor Senior Debt shall first be paid in full in cash or cash
equivalents before any payment is made on account of the Note Guarantees and all
other Obligations with respect thereto, except that the Holders of Note
Guarantees may receive Reorganization Securities. Upon any such Insolvency or
Liquidation Proceeding, any payment or distribution of assets of any Subsidiary
Guarantor of any kind or character, whether in cash, property or securities
(other than Reorganization Securities), to which the Holders of the Note
Guarantees or the Trustee would be entitled shall be paid by the Subsidiary
Guarantors or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, or by the Holders of the
Note Guarantees or by the Trustee if received by them, directly to the holders
of Guarantor Senior Debt (0ro rata to such holders on the basis of the amounts
of Guarantor Senior Debt held by such holders) or their Representative or
Representatives, as their interests may appear, for application to the payment
of the Guarantor Senior Debt remaining unpaid until all such Guarantor Senior
Debt has been paid in full, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of Guarantor Senior
Debt.
81
<PAGE> 98
Section 12.3. Default on Designated Guarantor Senior Debt.
(a) In the event of and during the continuation of any default in
the payment of principal of, interest or premium, if any, on any Guarantor
Senior Debt, or any Obligation owing from time to time under or in respect of
Guarantor Senior Debt, or in the event that any event of default (other than a
payment default) with respect to any Guarantor Senior Debt shall have occurred
and be continuing and shall have resulted in such Guarantor Senior Debt becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, or (b) if any event of default other than as
described in clause (a) above with respect to any Designated Senior Debt shall
have occurred and be continuing permitting the holders of such Designated Senior
Debt (or their Representative or Representatives) to declare such Designated
Senior Debt due and payable prior to the date on which it would otherwise have
become due and payable, then no payment shall be made by or on behalf of any
Subsidiary Guarantor on account of the Note Guarantees (other than payments in
the form of Reorganization Securities) (x) in case of any payment or nonpayment
default specified in (a), unless and until such default shall have been cured or
waived in writing in accordance with the instruments governing such Guarantor
Senior Debt or such acceleration shall have been rescinded or annulled, or (y)
in case of any nonpayment event of default specified in (b), during the period
(a "Payment Blockage Period") commencing on the date the Subsidiary Guarantors
and the Trustee receive written notice (a "Payment Notice") of such event of
default specifically referring to this Article 12 (which notice shall be binding
on the Trustee and the Holders of Note Guarantees as to the occurrence of such a
payment default or nonpayment event of default) from the Credit Agent (or other
holders of Designated Senior Debt or their Representative or Representatives)
and ending on the earliest of (A) 179 days after such date, (B) the date, if
any, on which the Trustee receives written notice from the Credit Agent (or
other holders of Designated Senior Debt or their Representative or
Representatives), as the case may be, stating that such Designated Senior Debt
to which such default relates is paid in full or such default is cured or waived
in writing in accordance with the instruments governing such Designated Senior
Debt by the holders of such Designated Senior Debt and (C) the date on which the
Trustee receives written notice from the Credit Agent (or other holders of
Designated Senior Debt or their Representative or Representatives), as the case
may be, terminating the Payment Blockage Period. During any consecutive 360-day
period, the aggregate of all Payment Blockage Periods shall not exceed 179 days
and there shall be a period of at least 181 consecutive days in each consecutive
360-day period when no Payment Blockage Period is in effect. No event of default
which existed or was continuing with respect to the Guarantor Senior Debt to
which notice commencing a Payment Blockage Period was given on the date such
Payment Blockage Period commenced shall be or be made the basis for the
commencement of any subsequent Payment Blockage Period unless such event of
default is cured or waived for a period of not less than 90 consecutive days.
Section 12.4. Acceleration of Note Guarantees.
If payment of the Note Guarantees is accelerated because of an Event
of Default, the Subsidiary Guarantor shall promptly notify such Representatives
of Guarantor Senior Debt of the acceleration.
82
<PAGE> 99
Section 12.5. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder of a Note Guarantee
receives any payment of any Obligations with respect to the Note Guarantees at a
time when such payment is prohibited by Section 12.3 hereof, such payment shall
be held by the Trustee or such Holder, in trust for the benefit of, and shall be
paid forthwith over and delivered, upon written request, to, the holders of
Guarantor Senior Debt as their interests may appear or their Representative
under the indenture or other agreement (if any) pursuant to which Guarantor
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Guarantor Senior
Debt remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Guarantor Senior Debt.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Guarantor Senior Debt shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Guarantor Senior Debt, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders of the Note Guarantees or the Company or any other Person
money or assets to which any holders of Guarantor Senior Debt shall be entitled
by virtue of this Article 12, except if such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.
Section 12.6. Notice by Subsidiary Guarantor.
The Subsidiary Guarantors shall promptly notify the Trustee and the
Paying Agent of any facts known to the Subsidiary Guarantors that would cause a
payment of any Obligations with respect to the Note Guarantees to violate this
Article, which notice shall specifically refer to this Article 12, but failure
to give such notice shall not affect the subordination of the Note Guarantees to
the Guarantor Senior Debt as provided in this Article.
Section 12.7. Subrogation.
After all Guarantor Senior Debt is paid in full and until the Notes
are paid in full, Holders of the Note Guarantees shall be subrogated (equally
and ratably with all pari passu indebtedness) to the rights of holders of
Guarantor Senior Debt to receive distributions applicable to Guarantor Senior
Debt to the extent that distributions otherwise payable to the Holders of the
Note Guarantees have been applied to the payment of Guarantor Senior Debt. A
distribution made under this Article to holders of Guarantor Senior Debt that
otherwise would have been made to Holders of the Note Guarantees is not, as
between the Subsidiary Guarantors and Holders of the Note Guarantees, a payment
by the Subsidiary Guarantors on the Note Guarantees.
83
<PAGE> 100
Section 12.8. Relative Rights.
This Article defines the relative rights of Holders of the Note
Guarantees and holders of Guarantor Senior Debt. Nothing in this Indenture
shall:
(i) impair, as between the Subsidiary Guarantors and Holders
of the Note Guarantees, the obligations of the Subsidiary Guarantors, which are
absolute and unconditional, to pay principal of and interest on the Notes in
accordance with the terms of the Note Guarantees;
(ii) affect the relative rights of Holders of the Note
Guarantees and creditors of the Subsidiary Guarantors other than their rights in
relation to holders of Guarantor Senior Debt; or
(iii) prevent the Trustee or any Holder of the Note Guarantees
from exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Guarantor Senior Debt to receive
distributions and payments otherwise payable to Holders of the Note Guarantees.
If the Subsidiary Guarantors fail because of this Article to pay
principal of or interest on a Note on the due date in accordance with the terms
of the Note Guarantees, the failure is still a Default or Event of Default.
Section 12.9. Subordination May Not Be Impaired by Subsidiary Guarantor.
No right of any holder of Guarantor Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Note Guarantees shall be
impaired by any act or failure to act by the Subsidiary Guarantors or any Holder
or by the failure of the Subsidiary Guarantors or any Holder to comply with this
Indenture.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Debt, or any of them, may, at any
time and from time to time, without the consent of or notice to the Holders of
the Note Guarantees, without incurring any liabilities to any Holder of any Note
Guarantees and without impairing or releasing the subordination and other
benefits provided in this Indenture or the obligations of the Holders of the
Note Guarantees to the holders of the Guarantor Senior Debt, even if any right
of reimbursement or subrogation or other right or remedy of any Holder of Note
Guarantees is affected, impaired or extinguished thereby, do any one or more of
the following:
(i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend, increase or alter, the
terms of any Guarantor Senior Debt, any security therefor or guaranty thereof or
any liability of any obligor thereon (including any guarantor) to such holder,
or any liability incurred directly or indirectly in respect thereof or otherwise
amend, renew, exchange, extend, modify, increase or supplement in any manner any
Guarantor Senior Debt or any instrument evidencing or guaranteeing or securing
the same or any agreement under which Guarantor Senior Debt is outstanding;
84
<PAGE> 101
The Trustee in its individual or any other capacity may hold
Guarantor Senior Debt with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
Section 12.12. Authorization to Effect Subordination.
Each Holder of a Note Guarantee by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 12, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes, including without limitation the
timely filing of a claim for the unpaid balance of the Notes held by such Holder
in the form required in any Insolvency or Liquidation Proceeding and causing
such claim to be approved. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.9 hereof at least 30 days before the expiration of the time of such claim, the
Representatives of the Designated Senior Debt, including the Credit Agent, are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Note Guarantees.
Section 12.13. Amendments
Any amendment to the provisions of this Article 12 shall require the
consent of the Holders of at least 75% in aggregate amount of Notes then
outstanding if such amendment would adversely affect the rights of the Holders
of Note Guarantees.
ARTICLE 13.
MISCELLANEOUS
Section 13.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 13.2. Notices.
Any notice or communication by the Company, the Subsidiary
Guarantors or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing next
day delivery, to the others' address:
If to the Company or the Subsidiary Guarantors:
APCOA, Inc.
800 Superior Avenue
Cleveland, Ohio
Telecopier No.: (216) 523-8080
Attention: President
86
<PAGE> 102
With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6188
Telecopier No.: (212) 403-2000
Attention: Adam O. Emmerich
If to the Trustee:
State Street Bank and Trust Company
225 Asylum Street
Hartford, Connecticut 06103
Telecopier No.: (860) 244-1897
Attention: Corporate Trust Department
The Company, the Subsidiary Guarantors or the Trustee, by notice to
the others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier promising next Business Day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail or by overnight air courier promising next Business Day delivery to
its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA ss. 313(c),
to the extent required by the TIA. Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 13.3. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
87
<PAGE> 103
Section 13.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or the Subsidiary
Guarantors to the Trustee to take any action under this Indenture (other than
the initial issuance of the Senior Subordinated Notes), the Company or
Subsidiary Guarantor shall furnish to the Trustee upon request:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.5 hereof) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.5 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 13.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 13.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 13.7. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company or the Subsidiary Guarantors, as such, shall have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Notes, this
Indenture, the Note Guarantees or for any claim
88
<PAGE> 104
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Section 13.8. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
Section 13.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 13.10. Successors.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture, the Notes and the Note Guarantees shall bind their respective
successors and assigns. All agreements of the Trustee in this Indenture shall
bind its successors and assigns.
Section 13.11. Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 13.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
89
<PAGE> 105
SIGNATURES
Dated as of March 30, 1998
Very truly yours,
APCOA, INC.
By: /s/ W. Stuelpe Jr.
--------------------------------------
Name: G. Walter Stuelpe, Jr.
Title: President
TOWER PARKING, INC.
By: /s/ W. Stuelpe Jr.
--------------------------------------
Name: G. Walter Stuelpe, Jr.
Title: President
GRAELIC, INC.
By: /s/ W. Stuelpe Jr.
--------------------------------------
Name: G. Walter Stuelpe, Jr.
Title: Vice President
<PAGE> 106
APCOA CAPITAL CORPORATION
By: /s/ W. Stuelpe Jr.
--------------------------------------
Name: G. Walter Stuelpe, Jr.
Title: President
A-1 AUTO PARK, INC.
By: /s/ W. Stuelpe Jr.
--------------------------------------
Name: G. Walter Stuelpe, Jr.
Title: President
METROPOLITAN PARKING SYSTEM, INC.
By: /s/ W. Stuelpe Jr.
--------------------------------------
Name: G. Walter Stuelpe, Jr.
Title: Vice President
EVENTS PARKING, INC.
By: /s/ W. Stuelpe Jr.
--------------------------------------
Name: G. Walter Stuelpe, Jr.
Title: Vice President
2
<PAGE> 107
STANDARD PARKING, L.P.
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT
STANDARD PARKING CORPORATION
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT
STANDARD PARKING CORPORATION, IL
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT
STANDARD PARKING CORPORATION, MW
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT
3
<PAGE> 108
STANDARD AUTO PARK
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT
STANDARD/WABASH PARKING CORPORATION
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT
STANDARD PARKING OF CANADA, L.P.
By: STANDARD PARKING CORPORATION,
its Managing Partner
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT OF STANDARD PARKING
CORPORATION, GENERAL PARTNER OF
STANDARD PARKING OF
CANADA, L.P.
STANDARD PARKING I, L.L.C.
By: STANDARD PARKING CORPORATION,
its Managing Partner
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT OF STANDARD
PARKING, MANAGING MEMBER OF
STANDARD PARKING I, L.L.C.
4
<PAGE> 109
STANDARD PARKING II, L.L.C.
By: STANDARD PARKING CORPORATION,
its Managing Partner
By: /s/ Myron C. Warshauer
--------------------------------------
Name: MYRON C. WARSHAUER
Title: PRESIDENT OF STANDARD
PARKING, MANAGING MEMBER OF
STANDARD PARKING II, L.L.C.
STATE STREET BANK AND TRUST COMPANY
as Trustee
By:
--------------------------------
Name: MICHAEL M. HOPKINS
Title: VICE PRESIDENT
5
<PAGE> 110
EXHIBIT A
(Face of Senior Subordinated Note)
9 1/4% Senior Subordinated Notes due 2008
No.____ $____________________
CUSIP NO.00185 WAA4
APCOA, Inc. promises to pay to ___________________ or registered
assigns, the principal sum of___________ Dollars on March 15, 2008.
Interest Payment Dates: March 15 and September 15 Record Dates:
March 1 and March 15
APCOA, INC.
By: ____________________________
Name:
Title:
This is one of the
Senior Subordinated Notes referred to in the
within-mentioned Indenture:
Dated: ____________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: __________________________
(Back of Senior Subordinated Note)
9 1/4% Senior Subordinated Notes due 2008
[Unless and until it is exchanged in whole or in part for Senior
Subordinated Notes in definitive form, this Senior Subordinated Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Unless this certificate is presented by
an authorized representative of The Depository Trust Company (55 Water Street,
<PAGE> 111
New York, New York) ("DTC"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL in as much as the registered owner hereof, Cede & Co., has an
interest herein.](1)
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(l), (2), (3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSE (b),
(c), (d) or (e), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS),
(2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
- - ----------
(1) This paragraph should be included only if the Senior Subordinated Note
is issued in global form.
2
<PAGE> 112
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.](2)
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. APCOA, Inc., a Delaware corporation, or its successor
(the "Company"), promises to pay interest on the principal amount of this Senior
Subordinated Note at the rate of 9 1/4% per annum and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages, if any, in United States dollars (except as otherwise provided herein)
semi-annually in arrears on March 15 and September 15, commencing on September
15, 1998, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Senior
Subordinated Notes shall accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default or Event of Default in the payment of
interest, and if this Senior Subordinated Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date,
except in the case of the original issuance of Senior Subordinated Notes, in
which case interest shall accrue from the date of authentication. The Company
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess
of the then applicable interest rate on the Senior Subordinated Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful. Interest shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages, if any,
on the applicable Interest Payment Date to the Persons who are registered
Holders of Senior Subordinated Notes at the close of business on March 1 or
September 1 next preceding the Interest Payment Date, even if such Senior
Subordinated Notes are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Senior Subordinated Notes shall be payable as
to principal, premium and Liquidated Damages, if any, and interest at the office
or agency of the Company maintained for such purpose within or without the City
and State of New York, or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds shall be required with respect to
principal of, premium and Liquidated Damages, if any, and interest on, all
Global Notes and all other Senior Subordinated Notes the Holders of which shall
have provided written wire transfer instructions to
- - ----------
(2) This paragraph should be removed upon the exchange of Senior
Subordinated Notes for New Senior Subordinated Notes in the Exchange Offer or
upon the registration of the Senior Subordinated Notes pursuant to the terms of
the Registration Rights Agreement.
3
<PAGE> 113
the Company and the Paying Agent. Such payment shall be in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and
Trust Company, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Senior Subordinated Notes under
an Indenture dated as of March 30, 1998 ("Indenture") among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Senior Subordinated
Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code ____ 77aaa-77bbbb) (the "TIA"). The Senior Subordinated Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms. The Senior Subordinated Notes are general
unsecured Obligations of the Company limited to $200,000,000 in aggregate
principal amount, plus amounts, if any, sufficient to pay premium or Liquidated
Damages, if any, and interest on outstanding Senior Subordinated Notes as set
forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Senior Subordinated
Notes shall not be redeemable at the Company's option prior to March 15, 2003.
Thereafter, the Senior Subordinated Notes shall be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below together with accrued and unpaid interest and any
Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on March 15 of the years
indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2003............................................104.625%
2004............................................103.083%
2005............................................101.542%
2006 and thereafter.............................100.000%
</TABLE>
Notwithstanding the foregoing, at any time prior to March 15, 2001,
the Company may redeem up to 35% of the original aggregate principal amount of
Senior Subordinated Notes at a redemption price of 109.25% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the redemption date, with the net proceeds of a Public Equity Offering;
provided that at least 65% of the original aggregate principal amount of Senior
Subordinated Notes remains outstanding immediately after the occurrence of such
redemption; and provided, further, that such redemption shall occur within 45
days of the date of the closing of such Public Equity Offering.
4
<PAGE> 114
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Senior Subordinated Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of
Senior Subordinated Notes will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Senior Subordinated Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon, to the date of
purchase. Within 30 days following any Change of Control, the Company will
mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control setting forth the procedures
governing the Change of Control Offer required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall offer to all Holders of Senior Subordinated
Notes (an "Asset Sale Offer") to purchase the maximum principal amount of
Senior Subordinated Notes that may be purchased out of the Excess Proceeds
at an offer price in cash equal to 100% of principal amount thereof, plus
accrued and unpaid interest, and Liquidated Damages thereon, if any, to
the date of purchase in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Senior Subordinated
Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for any
general corporate purposes. If the aggregate principal amount of Senior
Subordinated Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Senior Subordinated Notes to
be purchased on a pro rata basis. Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
(c) Holders of the Senior Subordinated Notes that are the
subject of an offer to purchase will receive a Change of Control Offer or
Asset Sale Offer from the Company prior to any related purchase date and
may elect to have such Senior Subordinated Notes purchased by completing
the form titled "Option of Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Subordinated Notes are to be redeemed at its registered
address. Senior Subordinated Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Senior
Subordinated Notes held by a Holder are to be redeemed. On and after the
redemption date, interest and Liquidated Damages, if any, ceases to accrue on
the Senior Subordinated Notes or portions thereof called for redemption.
5
<PAGE> 115
9. SUBORDINATION. The Notes are subordinated to Senior Debt, which
is all Indebtedness and other Obligations specified below payable directly or
indirectly the Company, or any of its Restricted Subsidiaries whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed by the Company or any of its Restricted Subsidiaries: (i) the principal
of, interest on and all other Obligations related to the New Credit Facility
(including without limitation all loans, letters of credit and other extensions
of credit under the New Credit Facility, and all expenses, fees, reimbursements,
indemnities and other amounts owing pursuant to the New Credit Facility); (ii)
amounts payable in respect of any Hedging Obligations; (iii) all Indebtedness
not prohibited by Section 4.9 hereof that is not expressly pari passu with or
subordinated to the Senior Subordinated Notes; and (iv) all permitted renewals,
extensions, refundings or refinancings thereof. All post-petition interest on
Senior Debt shall constitute Senior Debt. Notwithstanding anything to the
contrary in the foregoing, Senior Debt will not include (i) Indebtedness of the
Company or any of its Restricted Subsidiaries to any other Restricted
Subsidiaries which is not a Subsidiary Guarantor, (ii) any Indebtedness which by
the express terms of the agreement or instrument creating, evidencing or
governing the same is junior or subordinate in right of payment to any item of
Senior Debt, (iii) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business, or (iv)
Indebtedness incurred in violation of the Indenture. To the extent provided in
the Indenture, Senior Debt must be paid before the Notes may be paid. The
Company agrees and each Holder of Notes by accepting a Note consents and agrees
to the subordination provided in the Indenture and authorizes the Trustee to
give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Notes
are in registered form without coupons in initial denominations of $1,000 and
integral multiples of $1,000. The transfer of the Senior Subordinated Notes may
be registered and the Senior Subordinated Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Senior Subordinated Note or portion of a Senior Subordinated
Note selected for redemption, except for the unredeemed portion of any Senior
Subordinated Note being redeemed in part. Also, it need not exchange or register
the transfer of any Senior Subordinated Notes for a period of 15 days before a
selection of Senior Subordinated Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior
Subordinated Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Senior Subordinated Notes and the Note Guarantees
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Senior Subordinated Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of or, tender offer or exchange offer for Senior Subordinated Notes), and any
existing Default or Event of Default or compliance with any provision of the
Indenture, the Senior Subordinated Notes or the Note Guarantees may be waived
6
<PAGE> 116
with the consent of the Holders of a majority in principal amount of the then
outstanding Senior Subordinated Notes (including consents obtained in connection
with a tender offer or exchange offer for Senior Subordinated Notes).
Without the consent of any Holder of Senior Subordinated Notes, the
Company and the Trustee may amend or supplement the Indenture, the Note
Guarantees or the Senior Subordinated Notes to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Senior Subordinated Notes in
addition to or in place of certificated Senior Subordinated Notes, to provide
for the assumption of the Company's or a Subsidiary Guarantor's obligations to
Holders of Senior Subordinated Notes in the case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to the
Holders of Senior Subordinated Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with the requirements
of the Commission in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act or to allow any Subsidiary to guarantee
the Senior Subordinated Notes. Any amendments with respect to subordination
provisions of the Notes or the Note Guarantees would require the consent of the
Holders of at least 75% in aggregate amount of Notes then outstanding if such
amendment would be adversely affect the rights of the Holders of Notes.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on or Liquidated Damages, if
any, with respect to the Senior Subordinated Notes; (ii) default in payment when
due of the principal of or premium, if any, on the Senior Subordinated Notes;
(iii) failure by the Company or any Restricted Subsidiary to comply with the
provisions described in Sections 4.10, 4.14 or 5.1 of the Indenture; (iv)
failure by the Company or any Restricted Subsidiary for 30 days after notice
from the Trustee or at least 25% in principal amount of the Senior Subordinated
Notes to comply with the provisions described in Sections 4.7 and 4.9, of the
Indenture; (v) failure by the Company or any Subsidiary for 60 days after notice
from the Trustee or the Holders of at least 25% in principal amount of the
Senior Subordinated Notes then outstanding to comply with its other agreements
in the Indenture or the Senior Subordinated Notes; (vi) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of their its Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the date of the Indenture, which
default (A) (i) is caused by a failure to pay when due at final stated maturity
(giving effect to any grace period related thereto) any principal of or premium,
if any, or interest on such Indebtedness (a "Payment Default") or (ii) results
in the acceleration of such Indebtedness prior to its express maturity and (B)
in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$15.0 million or more; (vii) failure by the Company or any of its Subsidiaries
to pay final judgments aggregating in excess of $5.0 million, which judgments
are not paid discharged or stayed within 60 days after their entry; and (viii)
certain events of bankruptcy or insolvency with respect to the Company, any of
its Significant Subsidiaries or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary.
7
<PAGE> 117
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Senior
Subordinated Notes may declare all the Senior Subordinated Notes to be due and
payable immediately provided, however, that if any Indebtedness or Obligation is
outstanding pursuant to the New Credit Facility, upon a declaration of
acceleration by the holders of the Senior Subordinated Notes or the Trustee, all
principal and interest under the Indenture shall be due and payable upon the
earlier of (x) the day five Business Days after the provision to the Company,
the Credit Agent and the Trustee of such written notice of acceleration or (y)
the date of acceleration of any Indebtedness under the New Credit Facility; and
provided, further, that in the event of an acceleration based upon an Event of
Default set forth in clause (vi) above, such declaration of acceleration shall
be automatically annulled if the holders of Indebtedness which is the subject of
such failure to pay at maturity or acceleration have rescinded their declaration
of acceleration in respect of such Indebtedness or such failure to pay at
maturity shall have been cured or waived within 30 days thereof and no other
Event of Default has occurred during such 30-day period which has not been
cured, paid or waived. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, with respect to
the Company or any of its Significant Subsidiaries all outstanding Senior
Subordinated Notes will become due and payable without further action or notice.
Holders of the Senior Subordinated Notes may not enforce the Indenture or the
Senior Subordinated Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Senior Subordinated Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Senior
Subordinated Notes notice of any continuing Default or Event of Default (except
a Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company, the Subsidiary Guarantors or their respective
Affiliates, and may otherwise deal with the Company, the Subsidiary Guarantors
or their respective Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Senior Subordinated Notes, the Indenture or the
Note Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Senior Subordinated Notes by
accepting a Senior Subordinated Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Senior
Subordinated Notes and any Note Guarantee.
16. AUTHENTICATION. This Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating
agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the
8
<PAGE> 118
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES.
In addition to the rights provided to Holders of the Senior Subordinated Notes
under the Indenture, Holders of Transferred Restricted Securities (as defined in
the Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement, dated as of the date hereof, among the Company,
the Subsidiary Guarantors and the Initial Purchaser (the "Registration Rights
Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Senior Subordinated Notes and the Trustee may
use CUSIP numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Senior Subordinated Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
APCOA, Inc.
800 Superior Avenue
Cleveland, Ohio
Telecopy: (216) 523-8080
Chief Financial Officer
9
<PAGE> 119
ASSIGNMENT FORM
To assign this Senior Subordinated Note, fill in the form below: (I)
or (we) assign and transfer this Senior Subordinated Note to (Insert assignee's
soc. sec. or tax I.D. no.) (Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer this Senior Subordinated Note on the books
of the Company. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Senior Subordinated Note)
Signature Guarantee:
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Subordinated Note purchased
by the Company pursuant to Section 4.10 or 4.14 of the Indenture, check the box
below:
__Section 4.10 __Section 4.14
If you want to elect to have only part of the Senior Subordinated
Note purchased by the Company pursuant to Section 4.10 or Section 4.14 of the
Indenture, state the amount you elect to have purchased: $___________
Date:
Your Signature:
(Sign exactly as your name appears on the Senior Subordinated Note)
Tax Identification No.:
Signature Guarantee:
10
<PAGE> 120
SCHEDULE OF EXCHANGES OF SENIOR SUBORDINATED NOTES
The following exchanges of a part of this Global Note for other
Senior Subordinated Notes have been made:
Signature of
Amount of Principal authorized
Amount of increase in Amount of this officer of
decrease in Principal Global Note Trustee or
Principal Amount of following such Senior
Date of Amount of this this Global decrease (or Subordinated
Exchange Global Note Note increase) Note Custodian
11
<PAGE> 121
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
9 1/4% Senior Subordinated Notes due 2008
No. ____ $_________________
CIN NO. U00328AA9
APCOA, Inc. promises to pay to __________________ or registered
assigns, the principal sum of_________ Dollars on ___________, 2008.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
APCOA, INC.
By: _______________________________
Name:
Title:
This is one of the
Senior Subordinated Notes referred to in the
within-mentioned Indenture:
Dated: ____________________________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:________________________________
12
<PAGE> 122
(Back of Regulation S Temporary Global Note)
9-1/4% Senior Subordinated Note due 2008
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR
SUBORDINATED NOTES IN DEFINITIVE FORM, THIS SENIOR SUBORDINATED NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) ("DTC"),TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(l), (2), (3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN
<PAGE> 123
AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSES
(b), (c), (d) or (e), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SENIOR
SUBORDINATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON
PRIOR TO THE EXCHANGE OF THIS SENIOR SUBORDINATED NOTE FOR A REGULATION S
TEMPORARY GLOBAL NOTE AS CONTEMPLATED BY THE INDENTURE.]3
Until this Regulation S Temporary Global Note is exchanged for
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest or Liquidated Damages, if any, hereon although
interest and Liquidated Damages, if any, will continue to accrue; until so
exchanged in full, this Regulation S Temporary Global Note shall in all other
respects be entitled to the same benefits as other Senior Subordinated Notes
under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or
in part for one or more Regulation S Permanent Global Notes or Rule 144A Global
Notes only (i) on or after the termination of the 40-day restricted period (as
defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of this Regulation S Temporary Global Note for one or more
Regulation S Permanent Global Notes or Rule 144A Global Notes, the Trustee shall
cancel this Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This Regulation
S Temporary Global Note shall be governed by and construed in accordance with
the laws of the State of the New York. All references to
- - ----------
(3) These paragraphs should be removed upon the exchange of Regulation S
Temporary Global Notes for Regulation S Permanent Global Notes pursuant to the
Indenture.
2
<PAGE> 124
"$," "Dollars," "dollars" or "U.S. $" are to such coin or currency of the United
States of America as at the time shall be legal tender for the payment of public
and private debts therein.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. APCOA, Inc., a Delaware corporation, or its successor
(the "Company"), promises to pay interest on the principal amount of this Senior
Subordinated Note at the rate of 9 1/4% per annum and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages, if any, in United States dollars (except as otherwise provided herein)
semi-annually in arrears on March 15 and September 15, commencing on September
15, 1998, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Senior
Subordinated Notes shall accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default or Event of Default in the payment of
interest, and if this Senior Subordinated Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date,
except in the case of the original issuance of Senior Subordinated Notes, in
which case interest shall accrue from the date of authentication. The Company
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess
of the then applicable interest rate on the Senior Subordinated Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful. Interest shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages, if any,
on the applicable Interest Payment Date to the Persons who are registered
Holders of Senior Subordinated Notes at the close of business on the July 1 or
January 1 next preceding the Interest Payment Date, even if such Senior
Subordinated Notes are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Senior Subordinated Notes shall be payable as
to principal, premium and Liquidated Damages, if any, and interest at the office
or agency of the Company maintained for such purpose within or without the City
and State of New York, or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds shall be required with respect to
principal of, premium and Liquidated Damages, if any, and interest on, all
Global Notes and all other Senior Subordinated Notes the Holders of which shall
have provided written wire transfer instructions to the Company and the Paying
Agent. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
3
<PAGE> 125
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and
Trust Company, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Senior Subordinated Notes under
an Indenture dated as of July 11, 1997 ("Indenture") among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Senior Subordinated
Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code ss.ss. 77aaa-77bbbb) (the "TIA"). The Senior Subordinated Notes are subject
to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Senior Subordinated Notes are general unsecured
Obligations of the Company limited to $200,000,000 in aggregate principal
amount, plus amounts, if any, sufficient to pay premium or Liquidated Damages,
if any, and interest on outstanding Senior Subordinated Notes as set forth in
Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Senior Subordinated
Notes shall not be redeemable at the Company's option prior to March 15, 2003.
Thereafter, the Senior Subordinated Notes shall be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below together with accrued and unpaid interest and any
Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on March 15 of the years
indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2003............................................104.625%
2004............................................103.083%
2005............................................101.542%
2006 and thereafter.............................100.000%
</TABLE>
Notwithstanding the foregoing, at any time prior to March, 2001, the
Company may redeem up to 35% of the original aggregate principal amount of
Senior Subordinated Notes at a redemption price of 109.25% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the redemption date, with the net proceeds of a Public Equity Offering;
provided that at least 65% of the original aggregate principal amount of Senior
Subordinated Notes remains outstanding immediately after the occurrence of such
redemption; and provided, further, that such redemption shall occur within 45
days of the date of the closing of such Public Equity Offering.
4
<PAGE> 126
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Senior Subordinated Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of Senior
Subordinated Notes will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Senior Subordinated Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon, to the date of
purchase. Within 30 days following any Change of Control, the Company will
mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control setting forth the procedures
governing the Change of Control Offer required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall offer to all Holders of Senior Subordinated
Notes (an "Asset Sale Offer") to purchase the maximum principal amount of
Senior Subordinated Notes that may be purchased out of the Excess Proceeds
at an offer price in cash equal to 100% of principal amount thereof, plus
accrued and unpaid interest, and Liquidated Damages thereon, if any, to
the date of purchase in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Senior Subordinated
Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for any
general corporate purposes. If the aggregate principal amount of Senior
Subordinated Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Senior Subordinated Notes to
be purchased on a pro rata basis. Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
(c) Holders of the Senior Subordinated Notes that are the
subject of an offer to purchase will receive a Change of Control Offer or
Asset Sale Offer from the Company prior to any related purchase date and
may elect to have such Senior Subordinated Notes purchased by completing
the form titled "Option of Holder to Elect Purchase" appearing below.
1. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Subordinated Notes are to be redeemed at its registered
address. Senior Subordinated Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Senior
Subordinated Notes held by a Holder are to be redeemed. On and after the
redemption date, interest and Liquidated Damages, if any, ceases to accrue on
the Senior Subordinated Notes or portions thereof called for redemption.
5
<PAGE> 127
2. SUBORDINATION. The Notes are subordinated to Senior Debt, which
is all Indebtedness and other Obligations specified below payable directly or
indirectly the Company, or any of its Restricted Subsidiaries whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed by the Company or any of its Restricted Subsidiaries: (i) the principal
of, interest on and all other Obligations related to the New Credit Facility
(including without limitation all loans, letters of credit and other extensions
of credit under the New Credit Facility, and all expenses, fees, reimbursements,
indemnities and other amounts owing pursuant to the New Credit Facility); (ii)
amounts payable in respect of any Hedging Obligations; (iii) all Indebtedness
not prohibited by Section 4.9 hereof that is not expressly pari passu with or
subordinated to the Senior Subordinated Notes; and (iv) all permitted renewals,
extensions, refundings or refinancings thereof. All post-petition interest on
Senior Debt shall constitute Senior Debt. Notwithstanding anything to the
contrary in the foregoing, Senior Debt will not include (i) Indebtedness of the
Company or any of its Restricted Subsidiaries to any other Restricted
Subsidiaries which is not a Subsidiary Guarantor, (ii) any Indebtedness which by
the express terms of the agreement or instrument creating, evidencing or
governing the same is junior or subordinate in right of payment to any item of
Senior Debt, (iii) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business, or (iv)
Indebtedness incurred in violation of the Indenture. To the extent provided in
the Indenture, Senior Debt must be paid before the Notes may be paid. The
Company agrees and each Holder of Notes by accepting a Note consents and agrees
to the subordination provided in the Indenture and authorizes the Trustee to
give it effect.
3. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Notes
are in registered form without coupons in initial denominations of $1,000 and
integral multiples of $1,000. The transfer of the Senior Subordinated Notes may
be registered and the Senior Subordinated Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Senior Subordinated Note or portion of a Senior Subordinated
Note selected for redemption, except for the unredeemed portion of any Senior
Subordinated Note being redeemed in part. Also, it need not exchange or register
the transfer of any Senior Subordinated Notes for a period of 15 days before a
selection of Senior Subordinated Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.
4. PERSONS DEEMED OWNERS. The registered Holder of a Senior
Subordinated Note may be treated as its owner for all purposes.
5. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Senior Subordinated Notes and the Note Guarantees
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Senior Subordinated Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of or, tender offer or exchange offer for Senior Subordinated Notes), and any
existing Default or Event of Default or compliance with any provision of the
Indenture, the Senior Subordinated Notes or the Note Guarantees may be waived
6
<PAGE> 128
with the consent of the Holders of a majority in principal amount of the then
outstanding Senior Subordinated Notes (including consents obtained in connection
with a tender offer or exchange offer for Senior Subordinated Notes).
Without the consent of any Holder of Senior Subordinated Notes, the
Company and the Trustee may amend or supplement the Indenture, the Note
Guarantees or the Senior Subordinated Notes to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Senior Subordinated Notes in
addition to or in place of certificated Senior Subordinated Notes, to provide
for the assumption of the Company's or a Subsidiary Guarantor's obligations to
Holders of Senior Subordinated Notes in the case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to the
Holders of Senior Subordinated Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with the requirements
of the Commission in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act or to allow any Subsidiary to guarantee
the Senior Subordinated Notes. Any amendments with respect to subordination
provisions of the Notes or the Note Guarantees would require the consent of the
Holders of at least 75% in aggregate amount of Notes then outstanding if such
amendment would be adversely affect the rights of the Holders of Notes.
6. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on or Liquidated Damages, if any,
with respect to the Senior Subordinated Notes; (ii) default in payment when due
of the principal of or premium, if any, on the Senior Subordinated Notes; (iii)
failure by the Company or any Restricted Subsidiary to comply with the
provisions described in Sections 4.10, 4.14 or 5.1 of the Indenture; (iv)
failure by the Company or any Restricted Subsidiary for 30 days after notice
from the Trustee or at least 25% in principal amount of the Senior Subordinated
Notes to comply with the provisions described in Sections 4.7 and 4.9, of the
Indenture; (v) failure by the Company or any Subsidiary for 60 days after notice
from the Trustee or the Holders of at least 25% in principal amount of the
Senior Subordinated Notes then outstanding to comply with its other agreements
in the Indenture or the Senior Subordinated Notes; (vi) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of their its Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the date of the Indenture, which
default (A) (i) is caused by a failure to pay when due at final stated maturity
(giving effect to any grace period related thereto) any principal of or premium,
if any, or interest on such Indebtedness (a "Payment Default") or (ii) results
in the acceleration of such Indebtedness prior to its express maturity and (B)
in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$15.0 million or more; (vii) failure by the Company or any of its Subsidiaries
to pay final judgments aggregating in excess of $5.0 million, which judgments
are not paid discharged or stayed within 60 days after their entry; and (viii)
certain events of bankruptcy or insolvency with respect to the Company, any of
its Significant Subsidiaries or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary.
7
<PAGE> 129
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Senior
Subordinated Notes may declare all the Senior Subordinated Notes to be due and
payable immediately provided, however, that if any Indebtedness or Obligation is
outstanding pursuant to the New Credit Facility, upon a declaration of
acceleration by the holders of the Senior Subordinated Notes or the Trustee, all
principal and interest under the Indenture shall be due and payable upon the
earlier of (x) the day five Business Days after the provision to the Company,
the Credit Agent and the Trustee of such written notice of acceleration or (y)
the date of acceleration of any Indebtedness under the New Credit Facility; and
provided, further, that in the event of an acceleration based upon an Event of
Default set forth in clause (vi) above, such declaration of acceleration shall
be automatically annulled if the holders of Indebtedness which is the subject of
such failure to pay at maturity or acceleration have rescinded their declaration
of acceleration in respect of such Indebtedness or such failure to pay at
maturity shall have been cured or waived within 30 days thereof and no other
Event of Default has occurred during such 30-day period which has not been
cured, paid or waived. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, with respect to
the Company or any of its Significant Subsidiaries all outstanding Senior
Subordinated Notes will become due and payable without further action or notice.
Holders of the Senior Subordinated Notes may not enforce the Indenture or the
Senior Subordinated Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Senior Subordinated Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Senior
Subordinated Notes notice of any continuing Default or Event of Default (except
a Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest.
7. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company, the Subsidiary Guarantors or their respective
Affiliates, and may otherwise deal with the Company, the Subsidiary Guarantors
or their respective Affiliates, as if it were not the Trustee.
8. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Senior Subordinated Notes, the Indenture or the
Note Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Senior Subordinated Notes by
accepting a Senior Subordinated Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Senior
Subordinated Notes and any Note Guarantee.
9. AUTHENTICATION. This Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating
agent.
10. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the
8
<PAGE> 130
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
11. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES.
In addition to the rights provided to Holders of the Senior Subordinated Notes
under the Indenture, Holders of Transferred Restricted Securities (as defined in
the Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement, dated as of the date hereof, among the Company,
the Subsidiary Guarantors and the Initial Purchaser (the "Registration Rights
Agreement").
12. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Senior Subordinated Notes and the Trustee may
use CUSIP numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Senior Subordinated Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
APCOA, Inc.
800 Superior Avenue
Cleveland, Ohio 44114
Telecopy: (216) 523-8080
Chief Financial Officer
9
<PAGE> 131
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary
Global Note for other Global Notes have been made:
Amount of decrease Amount of increase Principal Amount of Signature
of
Signature of
Amount of Principal authorized
Amount of increase in Amount of this office of
decrease in Principal Global Note Trustee or
Principal Amount of following such Senior
Amount of this this Global decrease (or Subordinated
Date of Exchange Global Note Note increase) Note Custodian
- - ---------------- --------------- -------------- --------------- --------------
10
<PAGE> 132
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM RULE 144A
GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.6(a)(1) of the Indenture)
State Street Bank and Trust Company
225 Asylum Street
Hartford, Connecticut 06103
Re: 9__% Senior Subordinated Notes due 2008 of APCOA, Inc.
Reference is hereby made to the Indenture, dated as of March 30, 1998 (the
"Indenture"), among APCOA, Inc., a Delaware corporation (the "Company"), Tower
Parking, Inc., an Ohio corporation ("Tower"), Graelic, Inc., and Ohio
corporation ("Graelic"), APCOA Capital Corporation, a Delaware corporation
("APCOA Capital"), A-1 Auto Park, Inc., a Georgia corporation ("A-1 Auto"),
Metropolitan Parking System, Inc., a Massachusetts corporation ("Metropolitan"),
Events Parking Company, Inc., a Massachusetts corporation ("Events Parking"),
Standard Parking, L.P., a Delaware limited partnership ("SP"), Standard Parking
Corporation, an Illinois corporation ("SPC"), Standard Parking Corporation, IL,
an Illinois corporation ("SPC, IL"), Standard Parking Corporation, MW, an
Illinois corporation ("SPC, MW"), Standard Auto Park, Inc., an Illinois
corporation ("Standard Auto"), Standard/Wabash Parking Corporation, an Illinois
corporation ("S/W"), Standard Parking of Canada, L.P., a Illinois limited
partnership ("SP Canada"), Standard Parking I, L.L.C., a Delaware limited
liability company ("SPI"), Standard Parking II, L.L.C., a Delaware limited
liability company ("SPII"), (the "Subsidiary Guarantors") and State Street Bank
and Trust Company, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to $ ________________ principal amount of Senior
Subordinated Notes which are evidenced by one or more Rule 144A Global Notes and
held with the Depositary in the name of _________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Senior Subordinated Notes to a Person who will take delivery
thereof in the form of an equal principal amount of Senior Subordinated Notes
evidenced by one or more Regulation S Global Notes, which amount, immediately
after such transfer, is to be held with the Depositary through Euroclear or
Cedel or both.
In connection with such request and in respect of such Senior Subordinated
Notes, the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(1) The offer of the Senior Subordinated Notes was not made to a person in
the United States;
11
<PAGE> 133
(2) either:
(a) at the time the buy order was originated, the transferee was outside
the United States or the Transferor and any person acting on its
behalf reasonably believed and believes that the transferee was
outside the United States; or
(b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor
any person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary through
Euroclear or Cedel or both.
Upon giving effect to this request to exchange a beneficial interest in a
Rule 144A Global Note for a beneficial interest in a Regulation S Global Note,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Senior Subordinated
Notes, the additional restrictions applicable to transfers of interest in the
Regulation S Temporary Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and Donaldson,
Lufkin & Jenrette Securities Corporation and First Chicago Capital Markets,
Inc., the initial purchasers of such Senior Subordinated Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:______________________________
Name:
Title:
Dated:
cc: APCOA, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
First Chicago Capital Markets, Inc.
12
<PAGE> 134
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM REGULATION S
GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.6(a)(ii) of the Indenture)
State Street Bank and Trust Company
225 Superior Avenue
Hartford, Connecticut 06103
Re: 9 1/4% Senior Subordinated Notes due 2008 of APCOA, Inc.
Reference is hereby made to the Indenture, dated as of March 30, 1998 (the
"Indenture"), among APCOA, Inc., a Delaware corporation (the "Company"), Tower
Parking, Inc., an Ohio corporation ("Tower"), Graelic, Inc., and Ohio
corporation ("Graelic"), APCOA Capital Corporation, a Delaware corporation
("APCOA Capital"), A-1 Auto Park, Inc., a Georgia corporation ("A-1 Auto"),
Metropolitan Parking System, Inc., a Massachusetts corporation ("Metropolitan"),
Events Parking Company, Inc., a Massachusetts corporation ("Events Parking"),
Standard Parking, L.P., a Delaware limited partnership ("SP"), Standard Parking
Corporation, an Illinois corporation ("SPC"), Standard Parking Corporation, IL,
an Illinois corporation ("SPC, IL"), Standard Parking Corporation, MW, an
Illinois corporation ("SPC, MW"), Standard Auto Park, Inc., an Illinois
corporation ("Standard Auto"), Standard/Wabash Parking Corporation, an Illinois
corporation ("S/W"), Standard Parking of Canada, L.P., a Illinois limited
partnership ("SP Canada"), Standard Parking I, L.L.C., a Delaware limited
liability company ("SPI"), Standard Parking II, L.L.C., a Delaware limited
liability company ("SPII"), (the "Subsidiary Guarantors") and State Street Bank
and Trust Company, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Senior Subordinated
Notes which are evidenced by one or more Regulation S Global Notes and held with
the Depositary through Euroclear or Cedel in the name of
______________________________________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Senior Subordinated
Notes to a Person who will take delivery thereof in the form of an equal
principal amount of Senior Subordinated Notes evidenced by one or more Rule 144A
Global Notes, to be held with the Depositary.
In connection with such request and in respect of such Senior Subordinated
Notes, the Transferor hereby certifies that:
[CHECK ONE]
such transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the Senior
Subordinated Notes are being transferred to a
13
<PAGE> 135
Person that the Transferor reasonably believes is purchasing the Senior
Subordinated Notes for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A;
or
such transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act,
or
such transfer is being effected pursuant to an exemption under the
Securities Act other than Rule 144A, Rule 144 or Rule 904 and the Transferor
further certifies that the Transfer complies with the transfer restrictions
applicable to beneficial interests in Global Notes and Definitive Senior
Subordinated Notes bearing the Private Placement Legend and the requirements of
the exemption claimed, which certification is supported by (x) if such transfer
is in respect of a principal amount of Senior Subordinated Notes at the time of
Transfer of $250,000 or more, a certificate executed by the Transferee in the
form of EXHIBIT C to the Indenture, or (y) if such Transfer is in respect of a
principal amount of Senior Subordinated Notes at the time of transfer of less
than $250,000, (1) a certificate executed in the form of EXHIBIT C to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that (1) such Transfer is in compliance with the Securities Act
and (2) such Transfer complies with any applicable blue sky securities laws of
any state of the United States;
or
such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or Rule
144, and the Transferor hereby further certifies that the Senior Subordinated
Notes are being transferred in compliance with the transfer restrictions
applicable to the Global Notes and in accordance with the requirements of the
exemption claimed, which certification is supported by an Opinion of Counsel,
provided by the transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the Company and
to the Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and such Senior Subordinated Notes are being transferred in compliance
with any applicable blue sky securities laws of any state of the United States.
14
<PAGE> 136
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Notes for a beneficial interest in 144A Global Senior
Subordinated Notes, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Rule 144A Global Notes pursuant to the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company, the Subsidiary Guarantors and Donaldson, Lufkin
& Jenrette Securities Corporation, and First Chicago Capital Markets, Inc., the
initial purchasers of such Senior Subordinated Notes being transferred. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
Dated:
cc: APCOA, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
First Chicago Capital Markets, Inc.
15
<PAGE> 137
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE SENIOR SUBORDINATED NOTES
(Pursuant to Section 2.6(b) of the Indenture)
State Street Bank and Trust Company
225 Asylum Avenue
Hartford, Connecticut 06103
Re: 9__% Senior Subordinated Notes due 2008 of APCOA, Inc.
Reference is hereby made to the Indenture, dated as of March 30, 1998 (the
"Indenture"), among APCOA, Inc., a Delaware corporation (the "Company"), Tower
Parking, Inc., an Ohio corporation ("Tower"), Graelic, Inc., and Ohio
corporation ("Graelic"), APCOA Capital Corporation, a Delaware corporation
("APCOA Capital"), A-1 Auto Park, Inc., a Georgia corporation ("A-1 Auto"),
Metropolitan Parking System, Inc., a Massachusetts corporation ("Metropolitan"),
Events Parking Company, Inc., a Massachusetts corporation ("Events Parking"),
Standard Parking, L.P., a Delaware limited partnership ("SP"), Standard Parking
Corporation, an Illinois corporation ("SPC"), Standard Parking Corporation, IL,
an Illinois corporation ("SPC, IL"), Standard Parking Corporation, MW, an
Illinois corporation ("SPC, MW"), Standard Auto Park, Inc., an Illinois
corporation ("Standard Auto"), Standard/Wabash Parking Corporation, an Illinois
corporation ("S/W"), Standard Parking of Canada, L.P., a Illinois limited
partnership ("SP Canada"), Standard Parking I, L.L.C., a Delaware limited
liability company ("SPI"), Standard Parking II, L.L.C., a Delaware limited
liability company ("SPII"), (the "Subsidiary Guarantors") and State Street Bank
and Trust Company, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This relates to $ _________ principal amount of Senior Subordinated Notes
which are evidenced by one or more Definitive Senior Subordinated Notes in the
name of__________ (the "Transferor"). The Transferor has requested an exchange
or transfer of such Definitive Senior Subordinated Note(s) in the form of an
equal principal amount of Senior Subordinated Notes evidenced by one or more
Definitive Senior Subordinated Notes, to be delivered to the Transferor or, in
the case of a transfer of such Senior Subordinated Notes, to such Person as the
Transferor instructs the Trustee.
In connection with such request and in respect of the Senior Subordinated
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Subordinated Notes"), the Holder of such Surrendered Senior Subordinated Notes
hereby certifies that:
[CHECK ONE]
16
<PAGE> 138
the Surrendered Senior Subordinated Notes are being acquired for the
Transferor's own account, without transfer;
or
the Surrendered Senior Subordinated Notes are being transferred to the
Company;
or
the Surrendered Senior Subordinated Notes are being transferred pursuant
to and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Surrendered Senior Subordinated Notes are being
transferred to a Person that the Transferor reasonably believes is purchasing
the Surrendered Senior Subordinated Notes for its own account, or for one or
more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A;
or
the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
the Surrendered Senior Subordinated Notes are being transferred pursuant
to an exemption under the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor further certifies that the Transfer complies with the
transfer restrictions applicable to beneficial interests in Global Notes and
Definitive Senior Subordinated Notes bearing the Private Placement Legend and
the requirements of the exemption claimed, which certification is supported by
(x) if such transfer is in respect of a principal amount of Senior Subordinated
Notes at the time of Transfer of $250,000 or more, a certificate executed by the
Transferee in the form of EXHIBIT C to the Indenture, or (y) if such Transfer is
in respect of a principal amount of Senior Subordinated Notes at the time of
transfer of less than $250,000, (1) a certificate executed in the form of
EXHIBIT C to the Indenture and (2) an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that (I) such Transfer is in compliance with
the Securities Act and (2) such Transfer complies with any applicable blue sky
securities laws of any state of the United States;
or
the Surrendered Senior Subordinated Notes are being transferred pursuant
to an effective registration statement under the Securities Act; or
17
<PAGE> 139
such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or Rule
144, and the Transferor hereby further certifies that the Senior Subordinated
Notes are being transferred in compliance with the transfer restrictions
applicable to the Global Notes and in accordance with the requirements of the
exemption claimed, which certification is supported by an Opinion of Counsel,
provided by the transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the Company and
to the Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and Donaldson,
Lufkin & Jenrette Securities Corporation and First Chicago Capital Markets,
Inc., the initial purchasers of such Senior Subordinated Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By: ____________________________
Name:
Title:
Dated:
cc: APCOA, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
First Chicago Capital Markets, Inc.
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE
TO DEFINITIVE SENIOR SUBORDINATED NOTE
(Pursuant to Section 2.6(c) of the Indenture)
State Street Bank and Trust Company
225 Asylum Street
Hartford, Connecticut 06103
Re: 9 1/4% Senior Subordinated Notes due 2008 of APCOA, Inc.
Reference is hereby made to the Indenture, dated as of March 30, 1998 (the
"Indenture"), among APCOA, Inc., a Delaware corporation (the "Company"), Tower
Parking, Inc., an Ohio
18
<PAGE> 140
corporation ("Tower"), Graelic, Inc., and Ohio corporation ("Graelic"), APCOA
Capital Corporation, a Delaware corporation ("APCOA Capital"), A-1 Auto Park,
Inc., a Georgia corporation ("A-1 Auto"), Metropolitan Parking System, Inc., a
Massachusetts corporation ("Metropolitan"), Events Parking Company, Inc., a
Massachusetts corporation ("Events Parking"), Standard Parking, L.P., a Delaware
limited partnership ("SP"), Standard Parking Corporation, an Illinois
corporation ("SPC"), Standard Parking Corporation, IL, an Illinois corporation
("SPC, IL"), Standard Parking Corporation, MW, an Illinois corporation ("SPC,
MW"), Standard Auto Park, Inc., an Illinois corporation ("Standard Auto"),
Standard/Wabash Parking Corporation, an Illinois corporation ("S/W"), Standard
Parking of Canada, L.P., a Illinois limited partnership ("SP Canada"), Standard
Parking I, L.L.C., a Delaware limited liability company ("SPI"), Standard
Parking II, L.L.C., a Delaware limited liability company ("SPII"), (the
"Subsidiary Guarantors") and State Street Bank and Trust Company, as trustee
(the "Trustee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $___________ principal amount of Senior
Subordinated Notes which are evidenced by a beneficial interest in one or more
Rule 144A Global Notes or Regulation S Permanent Global Notes in the name of
______________ (the "Transferor"). The Transferor has requested an exchange or
transfer of such beneficial interest in the form of an equal principal amount of
Senior Subordinated Notes evidenced by one or more Definitive Senior
Subordinated Notes, to be delivered to the Transferor or, in the case of a
transfer of such Senior Subordinated Notes, to such Person as the Transferor
instructs the Trustee.
In connection with such request and in respect of the Senior Subordinated
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Subordinated Notes"), the Holder of such Surrendered Senior Subordinated Notes
hereby certifies that:
[CHECK ONE]
the Surrendered Senior Subordinated Notes are being transferred to the
beneficial owner of such Senior Subordinated Notes;
or
the Surrendered Senior Subordinated Notes are being transferred pursuant
to and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Surrendered Senior Subordinated Notes are being
transferred to a Person that the Transferor reasonably believes is purchasing
the Surrendered Senior Subordinated Notes for its own account, or for one or
more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a transaction meeting
they requirements of Rule 144A;
or
19
<PAGE> 141
the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
the Surrendered Senior Subordinated Notes are being transferred pursuant
to an effective registration statement under the Securities Act;
or
the Surrendered Senior Subordinated Notes are being transferred pursuant
to an exemption under the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor further certifies that the Transfer complies with the
transfer restrictions applicable to beneficial interests in Global Notes and
Definitive Senior Subordinated Notes bearing the Private Placement Legend and
the requirements of the exemption claimed, which certification is supported by
(x) if such transfer is in respect of a principal amount of Senior Subordinated
Notes at the time of Transfer of $250,000 or more, a certificate executed by the
Transferee in the form of EXHIBIT C to the Indenture, or (y) if such Transfer is
in respect of a principal amount of Senior Subordinated Notes at the time of
transfer of less than $250,000, (1) a certificate executed in the form of
EXHIBIT C to the Indenture and (2) an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that (1) such Transfer is in compliance with
the Securities Act and (2) such Transfer complies with any applicable blue sky
securities laws of any state of the United States;
or
such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or Rule
144, and the Transferor hereby further certifies that the Senior Subordinated
Notes are being transferred in compliance with the transfer restrictions
applicable to the Global Notes and in accordance with the requirements of the
exemption claimed, which certification is supported by an Opinion of Counsel,
provided by the transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the Company and
to the Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and Donaldson,
Lufkin & Jenrette Securities Corporation, the initial purchaser of such Senior
Subordinated Notes being transferred. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
20
<PAGE> 142
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated:
cc: APCOA, Inc.
Donaldson, Lutkin & Jenrette Securities Corporation
First Chicago Capital Markets, Inc.
21
<PAGE> 143
EXHIBIT C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
State Street Bank and Trust Company
225 Asylum Street
Hartford, Connecticut 06103
Re: 9-1/4% Senior Subordinated Notes due 2008 of APCOA, Inc.
Reference is hereby made to the Indenture, dated as of March 30, 1998 (the
"Indenture"), among APCOA, Inc., a Delaware corporation (the "Company"), Tower
Parking, Inc., an Ohio corporation ("Tower"), Graelic, Inc., and Ohio
corporation ("Graelic"), APCOA Capital Corporation, a Delaware corporation
("APCOA Capital"), A-1 Auto Park, Inc., a Georgia corporation ("A-1 Auto"),
Metropolitan Parking System, Inc., a Massachusetts corporation ("Metropolitan"),
Events Parking Company, Inc., a Massachusetts corporation ("Events Parking"),
Standard Parking, L.P., a Delaware limited partnership ("SP"), Standard Parking
Corporation, an Illinois corporation ("SPC"), Standard Parking Corporation, IL,
an Illinois corporation ("SPC, IL"), Standard Parking Corporation, MW, an
Illinois corporation ("SPC, MW"), Standard Auto Park, Inc., an Illinois
corporation ("Standard Auto"), Standard/Wabash Parking Corporation, an Illinois
corporation ("S/W"), Standard Parking of Canada, L.P., a Illinois limited
partnership ("SP Canada"), Standard Parking I, L.L.C., a Delaware limited
liability company ("SPI"), Standard Parking II, L.L.C., a Delaware limited
liability company ("SPII"), (the "Subsidiary Guarantors") and State Street Bank
and Trust Company, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $__________ aggregate
principal amount of:
(a)__Beneficial interests, or
(b)__Definitive Senior Subordinated Notes,
we confirm that:
1. We understand that any subsequent transfer of the Senior Subordinated
Notes of any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Senior Subordinated Notes or any
interest therein except in compliance with, such restrictions and conditions and
the Securities Act of 1933, as amended (the "Securities Act").
22
<PAGE> 144
2. We understand that the offer and sale of the Senior Subordinated Notes
have not been registered under the Securities Act, and that the Senior
Subordinated Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated, that if we should
sell the Senior Subordinated Notes or any interest therein, (A) we will do so
only (1)(a) to a person who the Seller reasonably believes is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of 144A, (b) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (c) outside the United States
to a foreign person in a transaction meeting the requirements of Rule 904 of the
Securities Act, or (d) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel), (2) to the Company or any of its subsidiaries or (3) pursuant to an
effective registration statement and, in each case, in accordance with any
applicable securities laws of any State of the United States or any other
applicable jurisdiction and (B) we will, and each subsequent holder will be
required to, notify any purchaser from it of the security evidenced hereby of
the resale restrictions set forth in (A) above."
3. We understand that, on any proposed resale of the Senior Subordinated
Notes or beneficial interests, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Senior Subordinated
Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Senior Subordinated
Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Senior Subordinated Notes or beneficial interests
therein purchased by us for our own account or for one or more accounts (each of
which is an institutional "accredited investor") as to each of which we exercise
sole investment discretion.
6. We are not acquiring the Senior Subordinated Notes with a view to any
distribution thereof that would violate the Securities Act or the securities
laws of any State of the United States.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By: ______________________________
Name:
Title:
Dated:
23
<PAGE> 145
EXHIBIT D
Note Guarantee
Subject to Section 11.6 of the Indenture, each Subsidiary Guarantor
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Senior Subordinated Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Senior Subordinated Notes and the
Obligations of the Company under the Senior Subordinated Notes or under the
Indenture, that: (a) the principal of, premium, if any, interest and Liquidated
Damages, if any, on the Senior Subordinated Notes will be promptly paid in full
when due, subject to any applicable grace period, whether at maturity, by
acceleration, redemption or otherwise, and interest on overdue principal,
premium, if any, (to the extent permitted by law) interest on any interest, if
any, and Liquidated Damages, if any, on the Senior Subordinated Notes and all
other payment Obligations of the Company to the Holders or the Trustee under the
Indenture or under the Senior Subordinated Notes will be promptly paid in full
and performed, all in accordance with the terms thereof, and (b) in case of any
extension of time of payment or renewal of any Senior Subordinated Notes or any
of such other payment Obligations, the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately.
The obligations of the Subsidiary Guarantor to the Holders and to
the Trustee pursuant to this Note Guarantee and the Indenture are expressly set
forth in Article 11 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Note Guarantee. The terms of Article 11
of the Indenture are incorporated herein by reference. This Note Guarantee is
subject to release as and to the extent provided in Section 11.4 of the
Indenture.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Senior Subordinated
Notes and the Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This is a Note Guarantee of payment and not a guarantee of collection.
This Note Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Senior Subordinated Note upon
which this Note Guarantee is noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized officers.
24
<PAGE> 146
For purposes hereof, each Subsidiary Guarantor's liability shall be
limited to the lesser of (i) the aggregate amount of the Obligations of the
Company under the Senior Subordinated Notes and the Indenture and (ii) the
amount, if any, which would not have (A) rendered such Subsidiary Guarantor
"insolvent" (as such term is defined in the Bankruptcy Law and in the Debtor and
Creditor Law of the State of New York) or (B) left such Subsidiary Guarantor
with unreasonably small capital at the time its Note Guarantee of the Senior
Subordinated Notes was entered into; provided that, it will be a presumption in
any lawsuit or other proceeding in which a Subsidiary Guarantor is a party that
the amount guaranteed pursuant to the Note Guarantee is the amount set forth in
clause (i) above unless any creditor, or representative of creditors of such
Subsidiary Guarantor, or debtor in possession or trustee in bankruptcy of such
Subsidiary Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of the Subsidiary Guarantor is limited to the amount set forth in
clause (ii) above. The Indenture provides that, in making any determination as
to the solvency or sufficiency of capital of a Subsidiary Guarantor in
accordance with the previous sentence, the right of such Subsidiary Guarantors
to contribution from other Subsidiary Guarantors and any other rights such
Subsidiary Guarantors may have, contractual or otherwise, shall be taken into
account.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
Dated as of___________ 1998
APCOA, INC.
By: __________________________
Name:
Title:
TOWER PARKING, INC.
By: __________________________
Name:
Title:
GRAELIC, INC.
By: __________________________
Name:
Title:
25
<PAGE> 147
APCOA CAPITAL CORPORATION
By: __________________________
Name:
Title:
A-1 AUTO PARK, INC.
By: _________________________
Name
Title:
METROPOLITAN PARKING SYSTEM, INC.
By: _________________________
Name:
Title:
EVENTS PARKING, INC.
By: __________________________
Name:
Title:
STANDARD PARKING, L.P.
By: ___________________________
Name:
Title:
STANDARD PARKING CORPORATION
By: ___________________________
Name:
Title:
26
<PAGE> 148
STANDARD PARKING CORPORATION, IL
By: ___________________________
Name:
Title:
STANDARD PARKING CORPORATION, MW
By: ___________________________
Name:
Title:
STANDARD AUTO PARK, INC.
By: ___________________________
Name:
Title:
STANDARD/WABASH PARKING CORPORATION
By: _____________________________
Name:
Title:
STANDARD PARKING OF CANADA
By: _____________________________
Name:
Title:
STANDARD PARKING I, L.L.C.
By: _____________________________
Name:
Title:
27
<PAGE> 149
STANDARD PARKING II, L.L.C.
By: _____________________________
Name:.
Title:
have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability shall be
limited to the lesser of (i) the aggregate amount of the Obligations of the
Company under the Senior Subordinated Notes and the Indenture and (ii) the
amount, if any, which would not have (A) rendered such Subsidiary Guarantor
"insolvent" (as such term is defined in the Bankruptcy Law and in the Debtor and
Creditor Law of the State of New York) or (B) left such Subsidiary Guarantor
with unreasonably small capital at the time its Note Guarantee of the Senior
Subordinated Notes was entered into; provided that, it will be a presumption in
any lawsuit or other proceeding in which a Subsidiary Guarantor is a party that
the amount guaranteed pursuant to the Note Guarantee is the amount set forth in
clause (i) above unless any creditor, or representative of creditors of such
Subsidiary Guarantor, or debtor in possession or trustee in bankruptcy of such
Subsidiary Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of the Subsidiary Guarantor is limited to the amount set forth in
clause (ii) above. The Indenture provides that, in making any determination as
to the solvency or sufficiency of capital of a Subsidiary Guarantor in
accordance with the previous sentence, the right of such Subsidiary Guarantors
to contribution from other Subsidiary Guarantors and any other rights such
Subsidiary Guarantors may have, contractual or otherwise, shall be taken into
account.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
Dated as of ___________, 1998
APCOA, INC.
By: __________________________
Name:
Title:
TOWER PARKING, INC.
By: __________________________
Name:
Title:
28
<PAGE> 150
GRAELIC, INC.
By: __________________________
Name:
Title:
APCOA CAPITAL CORPORATION
By: __________________________
Name:
Title:
A-1 AUTO PARK, INC.
By: __________________________
Name
Title:
METROPOLITAN PARKING SYSTEM, INC.
By: __________________________
Name:
Title:
EVENTS PARKING, INC.
By: ___________________________
Name:
Title:
STANDARD PARKING, L.P.
By: __________________________
Name:
Title:
29
<PAGE> 151
STANDARD PARKING CORPORATION
By: ___________________________
Name:
Title:
STANDARD PARKING CORPORATION, IL
By: _____________________________
Name:
Title:
STANDARD PARKING CORPORATION, MW
By: _____________________________
Name:
Title:
STANDARD AUTO PARK, INC
By: _____________________________
Name:
Title:
STANDARD/WABASH PARKING CORPORATION
By: _____________________________
Name:
Title:
STANDARD PARKING OF CANADA
By: _____________________________
Name:
Title:
30
<PAGE> 152
STANDARD PARKING I, L.L.C.
By: _____________________________
Name:
Title:
STANDARD PARKING II, L.L.C.
By: _____________________________
Name:.
Title:
31
<PAGE> 153
Exhibit E
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
___________ between Subsidiary Guarantor (the "New Subsidiary Guarantor"), a
subsidiary of APCOA, Inc., a Delaware corporation (the "Company"), and State
Street Bank and Trust Company, as trustee under the indenture referred to below
(the "Trustee"). Capitalized terms used herein and not defined herein shall have
the meaning ascribed to them in the Indenture (as defined below).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of March 30, 1998, providing
for the issuance of an aggregate principal amount of $110,000,000 of 9__%
Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes");
WHEREAS, Section 11.5 of the Indenture provides that under certain
circumstances the Company may cause, and Section 11.3 of the Indenture provides
that under certain circumstances the Company must cause, certain of its
subsidiaries to execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiaries shall unconditionally guarantee all of the
Company's Obligations under the Senior Subordinated Notes pursuant to a Note
Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO NOTE GUARANTEE. The New Subsidiary Guarantor hereby
agrees, jointly and severally with all other Subsidiary Guarantors, to guarantee
the Company's Obligations under the Senior Subordinated Notes and the Indenture
on the terms and subject to the conditions set forth in Article 11 of the
Indenture and to be bound by all other applicable provisions of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, shareholder or agent of any Subsidiary
Guarantor, as such, shall
32
<PAGE> 154
have any liability for any obligations of the Company or any Subsidiary
Guarantor under the Senior Subordinated Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Senior Subordinated Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Senior
Subordinated Notes.
4. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the New Subsidiary
Guarantor.
33
<PAGE> 155
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ___________________
[NAME OF NEW SUBSIDIARY GUARANTOR]
By: ______________________
Name:
Title:
34
<TABLE> <S> <C>
<ARTICLE> 5
<CIK>0001059262
<NAME>APCOA/STANDARD PARKING, INC.
<MULTIPLIER>1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 18,616
<SECURITIES> 0
<RECEIVABLES> 29,980
<ALLOWANCES> (471)
<INVENTORY> 0
<CURRENT-ASSETS> 50,415
<PP&E> 69,940
<DEPRECIATION> 44,883
<TOTAL-ASSETS> 203,539
<CURRENT-LIABILITIES> 44,907
<BONDS> 148,049
43,029
0
<COMMON> 1
<OTHER-SE> (48,763)
<TOTAL-LIABILITY-AND-EQUITY> 203,539
<SALES> 134,806
<TOTAL-REVENUES> 134,806
<CGS> 106,730
<TOTAL-COSTS> 106,730
<OTHER-EXPENSES> 35,682
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 8,576
<INCOME-PRETAX> (15,313)
<INCOME-TAX> 245
<INCOME-CONTINUING> (15,558)
<DISCONTINUED> 0
<EXTRAORDINARY> (2,816)
<CHANGES> 0
<NET-INCOME> (18,374)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
