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As filed with the Securities and Exchange Commission on June 20, 1996.
Registration No. 33
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNC INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 54-1078297
(State or other jurisdiction (I.R.S. Employer
of incorporated) Identification No.)
175 Admiral Cochrane Drive
Annapolis, Maryland 21401-7394
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
The UNC/Garrett Stock Purchase and Option Plan
(Full title of the plan)
Robert L. Pevenstein
Chief Financial Officer
UNC INCORPORATED
175 Admiral Cochrane Drive
Annapolis, Maryland 21401-7394
(410) 266-7333
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
John B. Frisch, Esquire
Miles & Stockbridge,
A Professional Corporation
10 Light Street
Baltimore, MD 21202
(412) 727-6464
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum Amount of
Securities Amount offering aggregate registration
to be to be price offering fee
Registered Registered* per share price
- ---------- ---------- --------- --------- ------------
Common Stock, 650,000 $9.00 $5,850,000 $2,019
par value $.20
per share
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the
Securities and Exchange Commission (the "Commission") are
incorporated by reference and made a part hereof:
(a) The registrant's annual report on Form 10-K for the
year ended December 31, 1995;
(b) The registrant's current reports on Form 8-K dated
May 7, 1996 and June 11, 1996;
(c) The registrant's quarterly report on Form 10-Q for the
quarter ended March 31, 1996; and
(d) The description of the registrant's Common Stock
contained in the registrant's registration statement on Form 8-A
filed with the Commission pursuant to Section 12 of the
Securities Exchange Act of 1934 (the "Exchange Act") and any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the registrant pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be
incorporated by reference into this registration statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
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The Delaware General Corporation Law authorizes Delaware
corporations to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding, if he
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The Delaware General Corporation Law also authorizes a
corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interest of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit is
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
To the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding discussed in the
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foregoing paragraphs, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection
therewith.
The registrant's Certificate of Incorporation does not limit
the extent of the indemnity provided by the Delaware General
Corporation Law. The Amended and Restated Bylaws of the
registrant permit indemnification of directors and officers to
the fullest extent permitted by the Delaware General Corporation
Law, and the registrant's directors and officers are covered by
certain insurance policies maintained by the registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
----------- -----------------------
4.1 The UNC/Garrett Stock Purchase and
Option Plan made and entered into
as of the 16th day of January,
1996.
4.2 Certificate of Incorporation as
amended by Certificate of
Designations of Series A Preferred
Stock, of the Company (filed as
Exhibit 4-H to Company's
Registration Statement No.
33-13762 and incorporated herein
by reference).
4.3 Form of Certificate of
Designations of Series A Junior
Participating Preferred Stock of
Company (filed as Exhibit A to the
Company's Form 8-A dated October
9, 1987, and incorporated herein
by reference).
4.4 Amended and Restated Bylaws of the
Company (including resolutions of
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the Board of Directors of the
Company on February 5, 1992
amending the By-Laws of the
Company) (filed as Exhibit 3-C to
the Company's Annual Report on
Form 10-K for the year ended
December 31, 1991 -- File No.
1-7795 and incorporated herein by
reference).
4.5 Rights Agreement, dated as of
September 25, 1987, between the
Company and Manufacturer Hanover
Trust Company (filed as Exhibit
No. 1 to the Company's Form 8-A
dated October 9, 1987 and
incorporated herein by reference).
4.6 Indenture, dated as of May 1,
1986, between the Company and
Maryland National Bank, Trustee,
relating to the Company's 7 1/2%
Convertible Subordinated
Debentures due 2006 (filed as
Exhibit 4-A to the Company's
Registration Statement No. 33-5136
and incorporated herein by
reference).
4.7 First Supplemental Indenture,
dated as of April 26, 1987,
between the Company and Maryland
National Bank, Trustee
(supplementing the Indenture,
dated May 1, 1986, between the
Company and Maryland National
Bank, Trustee, relating to the
Company's 7 1/2% Convertible
Subordinated Debentures due 2006)
(filed as Exhibit 4-J to
Registrant's Registration
Statement No. 33-13762 and
incorporated herein by reference).
4.8 Indenture, dated as of July 15,
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1993, between the Company and
Continental Bank, National
Association, Trustee, relating to
the Company's 9-1/8% Senior Notes
due 2003 (filed as Exhibit 4-B to
the Company's Quarterly Report on
Form 10-Q for the quarter ended
June 30, 1993 -- File No. 1-7795
and incorporated herein by
reference).
4.9 First Supplemental Indenture,
dated as of August 14, 1993,
between the Company and
Continental Bank, National
Association, Trustee
(supplementing the Indenture,
dated July 15, 1993, between the
Company and Continental Bank,
National Association, Trustee,
relating to the Registrant's
9-1/8% Senior Notes due 2003)
(filed as Exhibit 4.5 to the
Company's Annual Report on Form
10-K for the fiscal year ended
December 31, 1995 -- File No. 1-
7795 and incorporated herein by
reference).
4.10 Second Supplemental Indenture,
dated as of November 5, 1993,
between the Company and
Continental Bank, National
Association, Trustee
(supplementing the Indenture,
dated July 15, 1993, betwen the
Company and Continental Bank,
National Association, Trustee,
relating to the Registrant's
9-1/8% Senior Notes due 2003)
(filed as Exhibit 4.6 to the
Company's Annual Report on Form
10-K for the fiscal year ended
December 31, 1995 -- File No. 1-
7795 and incorporated herein by
reference).
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4.11 Third Supplemental Indenture,
dated as of May 15, 1996, among
UNC Incorporated, UNC Johnson
Technology, Inc., UNC Parts
Company, the other corporations
identified as Guarantors therein
and Chemical Bank, as Trustee.
4.12 Fourth Supplemental Indenture,
dated as of May 30, 1996, among
UNC Incorporated, the corporations
identified as Guarantors therein
and Chemical Bank, as Trustee.
4.13 Indenture dated as of May 30,
1996, among UNC Incorporated, the
other corporations identified
therein as Guarantors and The Bank
of New York, as Trustee (relating
to the Company's 11% Senior
Subordinated Notes due 2006).
5 Opinion of Miles & Stockbridge, a
Professional Corporation.
23 Consent of independent auditors
(the consent of counsel is
included in Exhibit 5).
24 Powers of Attorney.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or
sales are being made, a post-effective amendment
to this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act
of 1933;
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(ii) to reflect in the prospectus any facts
or events arising after the effective
date of the registration statement (or
the most recent post-effective
amendment thereof) which, individually
or in the aggregate, represent a
fundamental change in the information
set forth in the registration
statement; and
(iii) to include any material information
with respect to the plan of
distribution not previously disclosed
in the registration statement or any
material change to such information in
the registration statement;
provided, however, that subparagraphs (1)(i) and (1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) that, for the purpose of determining any
liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to
be the initial bona fide offering thereof.
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(3) to remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Annapolis, State of Maryland on June 20, 1996.
UNC INCORPORATED
By:/s/ Robert L. Pevenstein
_____________________________
Robert L. Pevenstein,
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
Dan A. Colussy* Chairman of the Board, June 11, 1996
- --------------------- President and Chief
(Dan A. Colussy) Executive Officer and
Director
/s/Robert L. Pevenstein Senior Vice President June 20, 1996
- --------------------- and Chief Financial
(Robert L. Pevenstein) Officer
Berl Bernhard* Director June 11, 1996
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(Berl Bernhard)
Beverly B. Byron* Director June 11, 1996
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(Beverly B. Byron)
John K. Castle* Director June 11, 1996
- ---------------------
(John K. Castle)
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William C. Hittinger* Director June 11, 1996
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(William C. Hittinger)
J. L. Holloway, III* Director June 11, 1996
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(J. L. Holloway, III)
Freeman A. Hrabowski,* Director June 11, 1996
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(Freeman A. Hrabowski, III)
George V. McGowan* Director June 11, 1996
- ----------------------
(George V. McGowan)
Jack Moseley* Director June 11, 1996
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(Jack Moseley)
Lawrence A. Skantze* Director June 11, 1996
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(Lawrence A. Skantze)
*By: /s/ Richard H. Lange
-------------------------
Richard H. Lange
Attorney-in-Fact
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UNC Incorporated
Exhibit Index
Exhibit Page
Number Exhibit Number
4.1 The UNC/Garrett Stock Purchase
and Option Plan made and entered
into as of the 16th day of
January, 1996
4.11 Third Supplemental Indenture,
dated as of May 15, 1996, among
UNC Incorporated, UNC Johnson
Technology, Inc., UNC Parts
Company, the other corporations
identified as Guarantors therein
and Chemical Bank, as Trustee.
4.12 Fourth Supplemental Indenture,
dated as of May 30, 1996, among UNC
Incorporated, the corporations
identified as Guarantors therein and
Chemical Bank, as Trustee.
4.13 Indenture dated as of May 30,
1996, among UNC Incorporated,
the other corporations identified
therein as Guarantors and The
Bank of New York, as Trustee
(relating to the Company's 11%
Senior Subordinated Notes due
2006).
5 Opinion of Miles & Stockbridge,
a Professional Corporation.
23 Consent of independent auditors
(the consent of counsel is
included in Exhibit 5).
24 Powers of Attorney.
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EXHIBIT 4.1
STOCK PURCHASE AND OPTION AGREEMENT
THIS STOCK PURCHASE AND OPTION AGREEMENT (this "Agreement")
is made and entered into as of the 30th day of May, 1996 by and
between UNC INCORPORATED, a Delaware corporation having its
principal place of business at 175 Admiral Cochrane Drive,
Annapolis, Maryland 21401 ("UNC"), and the individuals set forth
on Exhibit A to this Agreement (the "Holders").
WITNESSETH:
WHEREAS, UNC is the parent corporation of UNC/CFC
Acquisition Co., a Delaware corporation ("Subsidiary"), and a
wholly-owned subsidiary of UNC which has been formed by UNC for
the purposes of acquiring substantially all of the assets,
business and properties of CFC Aviation Services, L.P. ("CFC")
and thereafter operating the business of CFC;
NOW, THEREFORE, in consideration of the foregoing premises
of this Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto, the parties hereby agree as follows:
1. Certain Definitions. The following terms, whenever
used in capitalized form in this Agreement, shall have the
meanings indicated below:
"Asset Purchase Agreement" shall mean that certain
Asset Purchase Agreement dated as of January 16, 1996 by and
among UNC, Subsidiary, CFC Aviation Services, L.P., CFC Aviation
Company, L.L.C., CFC Aviation, Inc., Carlisle Enterprises, L.P.,
First Capital Corporation of Chicago, and Cross Creek Partners
III.
"Asset Purchase Closing" shall mean the closing of the
transactions contemplated by the Asset Purchase Agreement.
"Closing" shall have the meaning set forth in Section
3 of this Agreement.
"Closing Date" shall mean the date that the Closing
shall occur.
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"Common Stock" shall mean the common stock, par value
$0.20, of UNC.
"Extraordinary Common Stock Event" shall mean (i) the
issuance of additional shares of Common Stock as a dividend or
other distribution on outstanding shares of Common Stock,
(ii) the subdivision of outstanding shares of Common Stock into
a greater number of shares of Common Stock, (iii) the combination
of outstanding shares of Common Stock into a smaller number of
shares of Common Stock, in each case whether by reclassification
of shares of Common Stock, recapitalization of the UNC or
otherwise.
"Initial Shares" shall have the meaning set forth in
Section 2 of this Agreement.
"Option Exercise Price" shall have the meaning set
forth in Section 7 of this Agreement.
"Option Shares" shall have the meaning set forth in
Section 7 of this Agreement.
"Person" shall mean and include an individual,
corporation, partnership, limited liability partnership, trust,
unincorporated association, limited liability company or other
entity.
2. Purchase and Sale of Initial Shares.
(a) Subject to and in accordance with the terms and
conditions set forth in this Agreement, not later than five (5)
business days following the date of this Agreement, each Holder
shall purchase from UNC, and UNC shall issue and sell to Holder,
the number of shares of the authorized but unissued Common Stock
of UNC set forth under the caption "Initial Shares" opposite the
Holder's name on Exhibit A to this Agreement (the "Initial
Shares"), at a purchase price per share of $5.75, which purchase
price is equal to the closing price per share of the Common
Stock, as reported by the principal consolidated transaction
reporting system of the New York Stock Exchange, on January 16,
1996.
(b) Each Holder represents and warrants to UNC that he
has received and reviewed carefully the Confidential Preliminary
Offering Circular dated April 29, 1996 and the Confidential Final
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Offering Circular dated May 23, 1996 relating to UNC's offering
of $125,000,000 Senior Subordinated Notes due 2006 and UNC's
Annual Report on Form 10-K for the year ended December 31, 1995.
Each Holder further represents and warrants that he has had all
other information made available to him that he requested in
connection with his purchase of the Initial Shares and that
representatives of UNC have been available to answer and have
answered any and all questions Holder has had in connection with
his purchase of the Initial Shares to his satisfaction. Each
Holder represents and warrants that he is acquiring the Initial
Shares for his own account and not with any view towards the
distribution thereof. He understands that the transfer and
subsequent sale or disposition of the Initial Shares will be
subject to restrictions, including restrictions imposed by
applicable securities laws, and each Holder agrees that he shall
not sell, transfer or otherwise dispose of the Initial Shares
unless such a transfer, sale or distribution is made pursuant to
an effective registration statement that has been filed with the
Securities and Exchange Commission or UNC has determined to its
reasonable satisfaction that an exemption from registration is
applicable to the proposed sale, transfer or distribution.
3. Closing. The closing of the issuance, sale and
purchase of the Initial Shares (the "Closing") shall take place
at the principal place of business of UNC. At the Closing, the
Holders shall deliver, or cause to be delivered, to UNC via
certified check or by wire transfer of immediately available
funds, at the election of UNC, the full amount of the purchase
price for the Initial Shares, and against payment of the full
amount of the purchase price therefor, UNC shall issue and
deliver to the Holders certificates evidencing the Initial
Shares, registered in the name of each Holder, bearing the legend
provided for in Section 6 of this Agreement.
4. Registration of the Initial Shares. UNC hereby
covenants and agrees, as of the time of the Closing, that a
registration statement under the Securities Act of 1933, as
amended, on Form S-8 will be in effect with the Securities and
Exchange Commission covering the offer and sale of each of the
Initial Shares by UNC. In the event that UNC is unable to file
such a registration statement prior to closing, UNC shall
promptly upon the Holder's request, file a registration statement
on Form S-3 covering any proposed resale by the Holder of the
Initial Shares.
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5. Restriction on Disposition of Initial Shares. Each
Holder hereby agrees that, following the issuance of the Initial
Shares to him pursuant to this Agreement, for a period of twelve
(12) full calendar months following the Closing Date, he will not
sell, assign, transfer, convey or otherwise dispose of any of the
Initial Shares, with or without consideration therefor, or
pledge, hypothecate, grant any lien on or security interest in,
or otherwise encumber any of the Initial Shares.
6. Legend on Initial Shares Certificate. The certificate
evidencing the Initial Shares issued to the Holders at the
Closing shall bear a conspicuous legend which states as follows:
"The sale, assignment, transfer, conveyance,
gift, pledge, encumbrance or other disposition of
the shares evidenced by this Certificate are
restricted by and subject to the provisions of a
Stock Purchase and Option Agreement dated as of
January 16, 1996 by and between the Corporation
and the holder hereof. A copy of the Stock
Purchase and Option Agreement is on file at the
principal place of business of the Corporation
and may be obtained by the holder hereof without
charge upon written request to the Secretary of
the Corporation."
In case UNC has not filed a registration statement covering
the Initial Shares prior to Closing, the certificate shall also
bear the following legend:
"The securities represented by this certificate
have not been registered under the Securities Act
of 1933, as amended, under the Maryland
Securities Act, or under the securities acts of
any other state or jurisdiction. No sale, offer
to sell or other transfer of these securities may
be made unless pursuant to an effective
registration statement, or unless in the opinion
of counsel to the issuer the proposed disposition
may be made pursuant to a valid exemption from
the registration provisions of those Acts."
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7. Grant of Option to Purchase Option Shares. Subject to
and in accordance with the terms and conditions set forth in this
Agreement, UNC hereby grants to each Holder, effective as of the
Closing, the right and option to purchase from UNC, from time to
time as provided herein, up to the number of shares set forth
opposite the Holder's name on Exhibit A under the caption "Option
Shares" (the "Option Shares") at an Option Exercise Price per
share of $6.90, subject to adjustment as provided herein (the
"Option"). The Option Exercise Price and number and character of
the Option Shares are subject to adjustment from time to time as
provided herein.
8. Vesting of the Option.
8.1 Vesting Required for Exercise. Notwithstanding
the provisions of Section 7 of this Agreement, each Holder shall
not have the right to exercise the Option either in whole or in
part unless and until his Option shall vest as provided in this
Section.
8.2 General Vesting Schedule. The Option shall vest
as follows:
(a) If the Holder shall then hold all of the
Initial Shares he purchased at the Closing, the Holder's Option
shall vest with respect to one-third of the Option Shares on the
first anniversary of the Closing Date;
(b) If the Holder shall then hold at least two-
thirds of the Initial Shares, the Holder's Option shall vest with
respect to an additional one-third of the Option Shares on the
second anniversary of the Closing Date; and
(c) If the Holder shall then hold at least one-
third of the Initial Shares, the Holder's Option shall vest with
respect to an additional one-third of the Option Shares on the
third anniversary of the Closing Date.
9. Term of Option. Notwithstanding anything contained
herein which may be inconsistent or to the contrary, the Option
and the rights and interest of each Holder therein shall expire
and terminate, and become null and void, at 5:00 p.m., Eastern
Time, on January 15, 2001.
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10. Reservation of Common Stock for Exercise. UNC shall at
all times reserve and keep available out of its authorized and
unissued Common Stock, solely for the purpose of delivery upon
exercise of the Option, such number of shares of Common Stock as
hall, from time to time, then be deliverable to the Holders upon
the exercise of the Option.
11. Exercise of Option. To the extent that the Option
shall have vested in accordance with Section 8 of this Agreement,
the Option may be exercised by a Holder, in whole or in part, as
provided herein, by delivering to UNC from time to time written
notice of exercise in the form of the attached Exercise Notice,
duly completed and executed by the Holder, at the principal
executive office of UNC (or at such other office or agency of UNC
as UNC may from time to time designate in writing to the Holder),
together with payment by certified bank check of the aggregate
amount of the Option Exercise Price for the number of Option
Shares for which the Option is exercised by the Holder pursuant
to each such notice.
12. Issuance of Shares of Common Stock on Exercise.
12.1 As promptly as practicable after due and proper
exercise of the Option in accordance with Section 11 hereof, UNC
shall issue, at its expense, and shall deliver to the Holder at
the principal executive office of UNC (or at such other address
as may be specified by the Holder in the Exercise Notice) a
certificate or certificates for the number of full Option Shares
issuable upon such exercise.
12.2 Any exercise of the Option by the Holder shall be
deemed to have been made immediately prior to the close of
business on the date of receipt by UNC of the notice of exercise
in accordance with Section 12.1 hereof, and the Holder shall be
treated for all purposes as the holder of record of such Option
Shares as of the close of business on such date.
12.3 All Option Shares which shall be deliverable to
the Holder upon exercise of the Option shall, upon issuance and
delivery in accordance with the terms and conditions of the
Option, be duly and validly issued and fully paid and
nonassessable.
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13. No Fractional Option Shares or Scrip. No fractional
Option Shares or scrip representing fractional Option Shares
shall be issued upon the exercise of the Option. In lieu of any
fractional Option Share to which the Holder would otherwise be
entitled upon exercise of the Option, UNC shall make a cash
payment to the Holder in an amount equal to a corresponding
fraction of the purchase price for such Option Share.
14. Adjustments to the Number and Character of Option
Shares. Subject to the provisions of Section 14.4, the Option
Exercise Price and the number and character of the Option shall
be adjusted from time to time as provided in Sections 14.1, 14.2
and 14.3 below:
14.1 If the Option Shares issuable upon the exercise of
the Option shall be changed into the same or a different number
of shares of any other class or classes or series of capital
stock of UNC other than Common Stock or into securities or other
property, whether by recapitalization, reclassification or
otherwise (other than pursuant to a merger, consolidation, share
exchange, or sale, lease, exchange or transfer of property and
assets described in Section 14.2), then, and in each such event,
the Holder shall have the right thereafter to receive, upon
exercise of the Option, the kind and amount of shares of capital
stock or other securities or property which were received by the
holders of the number of shares of the Common Stock which is
equal to the number of Option Shares for which the Option is then
exercisable by the Holder. No adjustments or provision for
adjustments shall be made with respect to the Option Exercise
Price or the number of Option Shares as a result of any of the
events described in this Section 14.1.
14.2 Except as otherwise provided in this Section 14.2,
if, at any time or from time to time, UNC shall be a party to a
merger or consolidation with or into another Person, a share
exchange involving the shares of Common Stock or shall sell,
lease, exchange or transfer all or substantially all of the
property or assets of UNC to any other Person, then, as a
condition to the consummation of such transaction, adequate
provision shall be made so that the Holder shall thereafter be
entitled to receive, upon exercise of the Option, the number of
shares of capital stock or other securities or property of UNC,
or of the successor corporation resulting from such merger,
consolidation, share exchange or sale, lease, exchange or
transfer, that would have been received by the Holder for each
<PAGE>
<PAGE> 8
Option Share had the Option been exercised in full immediately
prior to the consummation of such transaction, and thereafter the
Holder shall be entitled to receive, upon exercise of the Option,
the amount of shares of capital stock or other securities or
property which were received in connection with such transaction
by the holders of the number of shares of the Common Stock which
is equal to the number of Option Shares for which the Option is
then exercisable by the Holder. No adjustments or provision for
adjustments shall be made to the Option Exercise Price or the
number of Option Shares as a result of any of the events
described in this Section 14.2.
14.3 If UNC shall, at any time while the Option shall
remain in effect, engage in an Extraordinary Common Stock Event,
the Option Exercise Price and the number of Option Shares for the
Option may be exercised shall be adjusted as follows:
(a) the Option Exercise Price shall be adjusted,
effective as of the close of business on the effective date
of the Extraordinary Common Stock Event, to an amount
determined by multiplying the Option Exercise Price in
effect immediately prior to such Extraordinary Common Stock
Event by a fraction:
(1) the numerator of which shall be the
number of shares of the Common Stock outstanding
immediately after the Extraordinary Common Stock Event;
and
(2) the denominator of which shall be the
number of shares of the Common Stock outstanding
immediately prior to the Extraordinary Common Stock
Event; and
(b) the total number of Option Shares for which
the Option is exercisable by the Holder upon exercise of the
Option also shall be adjusted, effective as of the close of
business on the effective date of the Extraordinary Common
Stock Event, to an amount determined by multiplying the
number of Option Shares for which the Option could have been
exercised immediately prior to the Extraordinary Common
Stock Event by a fraction:
<PAGE>
<PAGE> 9
(1) the numerator of which shall be the
Option Exercise Price in effect immediately prior to
the Extraordinary Common Stock Event; and
(2) the denominator of which shall be the
Option Exercise Price determined pursuant to the
application of the provisions of clause (a) of this
Section 14.3.
14.4 No adjustment to the number of Option Shares shall
be required to be made unless such adjustment will require an
increase or decrease of at least one full Option Share; provided,
however, that any adjustments that are not required to be made by
reason of the provisions of this Section 14.4 shall be carried
forward and shall be made at the time of, and together with, the
next subsequent adjustment which, together with any adjustment(s)
so carried forward, shall result in an increase or decrease of at
least one Option Share. Any determination as to whether an
adjustment to the Option Exercise Price or the number of Option
Shares is required to be made pursuant to the provisions of this
Section 14, or as to the amount of any such adjustment, if
required, shall be binding upon the Holder and UNC if made in
good faith by the Board of Directors of UNC.
15. Notices. In the event that UNC proposes to take any
action or to engage in any transaction of a type which would
require an adjustment to the number of Option Shares, UNC shall
cause to be mailed to the Holder at least ten (10) days prior to
the applicable date hereinafter specified, a notice stating the
date on which such action or transaction is expected to take
place, and the date, if any is to be fixed, as of or on which
holders of shares of the Common Stock shall be entitled to
exchange such shares for other securities or property in
connection with any such transaction. Notwithstanding the
foregoing, however, the failure of UNC to give such notice, or
any defect therein, shall not effect the legality or validity of
any action taken by UNC.
16. Reports as to Adjustments. Whenever the number of
Option Shares is adjusted as provided in Section 14 hereof, UNC
shall promptly mail to the Holder at its address, as the same
shall appear on the books of UNC, a notice describing the events
requiring the adjustment, the method of calculating the
adjustment, the number of Option Shares which may be purchased
pursuant to the exercise of the Option immediately following the
<PAGE>
<PAGE> 10
adjustment, the Option Exercise Price in effect immediately
following the adjustment, and the effective date of the
adjustment.
17. Conditions to the Obligations of Parties.
17.1 The obligations of UNC to issue, sell and deliver
to the Holder the Initial Shares and to perform its other
obligations under this Agreement which are to be performed at and
after the Closing, and the grant of the Option to the Holder
hereunder, are contingent upon and subject to the satisfaction at
or prior to the Closing of the conditions precedent set forth
below:
(a) As of the Closing Date, there shall be no
injunction, restraining order or decree of any nature whatsoever
that is in effect or restrains or prohibits the consummation of
the transactions contemplated hereby.
(b) The Asset Purchase Closing shall have
occurred.
17.2 The obligations of the Holder to consummate the
purchase of the Initial Shares at the Closing and to perform his
other obligations under this Agreement which are to be performed
at and after the Closing are subject to the satisfaction at or
prior to the Closing of the condition precedent set forth below:
(a) As of the Closing Date, there shall be no
injunction, restraining order or decree of any nature whatsoever
that is in effect which restrains or prohibits the consummation
of the transactions contemplated hereby.
18. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned prior to the
Closing only as follows:
(a) By mutual written consent of UNC and the Holder;
or
(b) By UNC, upon written notice to the Holder in the
event that any of the conditions precedent to the obligations of
UNC set forth in Section 17.1 shall have not been satisfied on or
before June 30, 1996 or waived in writing by UNC; or
<PAGE>
<PAGE> 11
(c) By the Holder, upon written notice to UNC, in the
event that any of the conditions precedent to the obligations of
the Holder set forth in Section 17.2 shall not have been
satisfied on or before June 30, 1996 or waived in writing by the
Holder; or
(d) Automatically, without any action on the part of
UNC or the Holder in the event that the Asset Purchase Agreement
shall terminate in accordance with its terms for any reason
whatsoever.
18.2 In the event that this Agreement shall terminate
pursuant to any of the provisions of Section 18.1, then all
further obligations of the parties hereto shall become null and
void and of no further force or effect and no party hereto shall
have any liability hereunder to any other party. Notwithstanding
the foregoing, the obligations of the parties hereto under
Section 19 shall survive any termination of this Agreement by any
party to this Agreement.
19. Confidentiality. The Holder hereby agrees to hold in
confidence and not to disclose to any party the terms of this
Agreement, except to the extent required by law, and except to
the extent necessary to (i) respond to lawful process, (ii)
comply with applicable law, (iii) establish a lawful claim or
defense, or (iv) obtain reasonably necessary advice of counsel.
20. No Rights as a Stockholder. The grant of the Option to
each Holder hereunder shall not entitle the Holder to any rights
as a stockholder of UNC with respect to any of the Option Shares
unless and until the Option shall have been exercised by the
Holder. Nothing contained in this Section 20 shall be construed,
however, as limiting in any way the rights of the Holder as a
stockholder of UNC with respect to the Initial Shares following
the purchase thereof by the Holder at the Closing in accordance
with this Agreement.
21. No Effect On Powers of UNC. The existence of the
Option shall not affect in any way the right or power of UNC or
its stockholders to make or authorize any adjustments,
recapitalizations, reorganizations, or other changes in its
capital structure or its business, or any merger or consolidation
of UNC with or into any other Person, or any issue of bonds,
debentures, preferred shares with rights greater than or
affecting the Initial Shares or the Option Shares or any shares
<PAGE>
<PAGE> 12
of the Common Stock, or its dissolution or liquidation, or any
sale or transfer of all or any part of its assets or business, or
any other corporate act or proceeding, whether of a similar
character or otherwise.
22. No Effect on Employment of the Holder. Nothing
contained in this Agreement shall affect in any manner whatsoever
the rights of Subsidiary under any Employment Agreement to which
a Holder may be a party or shall be construed to grant to any
Holder the right to continue in the employ of Subsidiary or UNC,
or any of their respective affiliates.
23. Nonqualified Stock Option. The Option granted
hereunder is not intended to qualify, and shall not be treated,
as an "incentive stock option" within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended, and the Holder
hereby acknowledges and agrees that the grant of the Option to
him hereunder may result in the imputation of income to him under
federal, state and local tax laws and that he shall be solely
responsible and liable for the payment of any and all taxes on
such income.
24. Option Not Transferrable. The Option granted to each
Holder hereunder is personal to the Holder and is not
transferrable by Holder otherwise than pursuant to testamentary
will or the laws of descent and distribution, and, during the
lifetime of the Holder, may be exercised only by the Holder or
his legal guardian or legal representative. Except as permitted
by the preceding sentence, neither the Option nor any of the
rights or privileges of the Holder therein shall be sold,
transferred, conveyed or otherwise disposed of, with or without
consideration therefor, or pledged, hypothecated or otherwise
encumbered by the Holder. Upon any attempt by the Holder to take
any of the actions prohibited by this Section 24, or upon the
levy of any attachment or similar process upon the Option or any
right or interest of the Holder therein, the Option and any all
rights and interest of the Holder therein shall immediately
become null and void and of no further force or effect.
25. Entire Agreement. This Agreement constitutes the
entire agreement and understanding between the parties hereto in
respect of the matters set forth herein, and all prior
negotiations, writings and understandings relating to the subject
matter of this Agreement are merged herein and are superseded and
cancelled by this Agreement.
<PAGE>
<PAGE> 13
26. Amendment and Waiver. This Agreement may be amended,
modified, supplemented or changed in whole or in part only by an
agreement in writing making specific reference to this Agreement
and executed by each of the parties hereto. Any of the terms and
conditions of this Agreement may be waived in whole or in part,
but only by an agreement in writing making specific reference to
this Agreement and executed by the party that is entitled to the
benefit thereof. The failure of any party hereto to insist upon
strict performance of or compliance with the provisions of this
Agreement shall not constitute a waiver of any right of any such
party hereunder or prohibit or limit the right of such party to
insist upon strict performance or compliance at any other time.
27. Binding Effect. The rights and obligations of UNC
under this Agreement shall inure to the benefit of and be binding
upon its successors and assigns. The rights and obligations of
the Holder under this Agreement shall inure to the benefit of and
be binding upon his heirs, legatees, personal representatives,
legal guardians, executors or administrators.
28. Assignment. This Agreement and the rights of the
parties hereunder may not be assigned, and the obligations of the
parties hereunder may not be delegated, in whole or in part, by
any party without the prior written consent of the other parties
hereto except that (i) the Holder shall have the right to assign
this Agreement and his rights hereunder and to delegate his
obligations hereunder upon his death pursuant to a testamentary
will or pursuant to the laws of descent and distribution and (ii)
UNC may assign this Agreement and its rights hereunder and
delegate its obligations hereunder to any of its successors in
interest.
29. Notices. Any notice, request, instruction or other
document or communication required or permitted to be given under
this Agreement to any of the parties hereto shall be in writing
and shall be deemed given (i) three days after being deposited in
the mail, postage prepaid, certified or registered mail, (ii) on
the next business day after delivery to a reputable overnight
delivery service such as Federal Express, or (iii) upon personal
delivery if delivered or addressed to the addresses set forth
below or to such other address as any party may hereafter specify
by written notice to the other parties hereto:
(a) If to UNC, delivered or mailed to UNC
Incorporated, 175 Admiral Cochrane Drive, Annapolis, Maryland
<PAGE>
<PAGE> 14
21401, Attention: General Counsel, with a copy delivered or
mailed to John B. Frisch, Esquire, Miles & Stockbridge, a
Professional Corporation, 10 Light Street, Baltimore, Maryland
21202; and
(b) If to a Holder, delivered or mailed to the Holder
at the address of the Holder as it appears on the books and
records of UNC.
29. Section Headings. The Section headings contained in
this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning or interpretation of
this Agreement or any of its terms and conditions.
30. Governing Law. This Agreement shall be interpreted,
construed and enforced in accordance with and shall be governed
by the laws of the State of Maryland, without regard to its
principles of conflicts of laws.
31. Construction. As used in this Agreement, any reference
to the masculine, feminine or neuter gender shall include all
genders, the plural shall include the singular, and the singular
shall include the plural. For purposes of this Agreement,
references to the "close of business" of any given day shall be
5:00 p.m., Eastern time. For purposes of this Agreement,
whenever the word "Holder" is used in any provision of this
Agreement when, under the circumstances, the provision logically
should be construed to apply the guardian, legal representative,
executor, administrator or any other person to whom the Option or
any of the rights of the Holder therein or under this Agreement
shall have been assigned or transferred pursuant to a
testamentary will or pursuant to the laws of descent and
distribution, the term "Holder" shall be construed to mean such
person or persons.
32. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same
instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
<PAGE>
<PAGE> 15
IN WITNESS WHEREOF, each of the parties hereto have executed
this Agreement as of the day and year first above written.
UNC INCORPORATED
By:________________________________
Dan A. Colussy
Chairman, President and Chief
Executive Officer
HOLDERS:
___________________________________
L. David Clemons
___________________________________
James E. Greenslade
___________________________________
Kennard Goldsmith
___________________________________
Peter M. Hokanson
___________________________________
David N. Roy
___________________________________
James M. Zentgraf
___________________________________
William G. Nielsen
___________________________________
Edgar J. Ahrens
___________________________________
Michael L. Durst
<PAGE>
<PAGE> 16
EXERCISE NOTICE
To: UNC Incorporated
1. The undersigned, being a Holder referred to in that
certain Option Agreement dated as of January 16, 1996 by and
between UNC Incorporated and the undersigned, hereby exercise the
Option referred to therein and elect to purchase ________ shares
of Common Stock of UNC Incorporated, pursuant to the terms of the
Option Agreement, and tender herewith payment in full of the
Option Exercise Price for such shares.
2. Please issue a certificate or certificates representing
the shares of Common Stock of UNC Incorporated purchased in
accordance with this Exercise Notice in the name of the
undersigned, and deliver the certificate or certificates to the
undersigned at the address set forth below.
___________________________________
Signature
Address for delivery of
certificates:
___________________________________
___________________________________
___________________________________
___________________________________
<PAGE>
<PAGE>
<PAGE> 1
EXHIBIT 4.11
- ----------------------------------------------------------------
UNC INCORPORATED
9 1/8% Senior Notes Due 2003
THIRD SUPPLEMENTAL INDENTURE
Dated as of May 15, 1996
Supplement to Indenture
Dated as of July 15, 1993
Chemical Bank,
Trustee
- ----------------------------------------------------------------
<PAGE>
<PAGE> 2
THIRD SUPPLEMENTAL INDENTURE, dated as of May 15, 1996,
among UNC INCORPORATED, a Delaware corporation (the "Company"),
UNC JOHNSON TECHNOLOGY, INC., a Delaware corporation ("Johnson
Technology"), UNC PARTS COMPANY, a Maryland corporation ("Parts
Company"), the other corporations identified as Guarantors on the
signature pages hereto (each a "Guarantor" and collectively the
"Guarantors") and CHEMICAL BANK, a banking corporation duly
organized and existing under the laws of the State of New York,
successor to Continental Bank, National Association, as Trustee
(the "Trustee").
WHEREAS, the Company, the Guarantors and the Trustee entered
into an Indenture dated as of July 15, 1993 (as amended by the
First Supplemental Indenture, dated as of August 14, 1993, and
the Second Supplemental Indenture, dated as of November 5, 1993,
the "Indenture"), providing for the issuance by the Company of
its 9 1/8% Senior Notes due 2003 (the "Notes") and the
related guarantees of the Guarantors (the "Guarantees") (the
Notes and the Guarantees are sometimes collectively referred to
herein as the "Securities");
WHEREAS, SECTION 9.01(4) of the Indenture provides that the
Company, the Guarantors and the Trustee may amend the Indenture
to add guarantees with respect to the Notes and any other
Obligations without notice to or consent of any Securityholder;
WHEREAS, SECTION 9.01(6) of the Indenture provides that the
Company, the Guarantors and the Trustee may amend the Indenture
to release guarantees with respect to the Notes without notice to
or consent of any Securityholder;
WHEREAS, the Company (or a subsidiary of the Company) owns
all of the outstanding capital stock of Johnson Technology and
Parts Company;
WHEREAS, in accordance with SECTION 10.05 of the Indenture,
the Company, as the beneficial owner of all of the outstanding
capital stock of Johnson Technology and Parts Company, wishes to
provide for the greater security of the Holders of the Securities
by causing Johnson Technology and Parts Company to guarantee the
due and punctual payment of the principal of, premium, if any,
and interest, if any, on the Notes and any other Obligations;
WHEREAS, in accordance with SECTION 10.06 of the Indenture,
the Company wishes that certain of the Guarantors identified in
<PAGE>
<PAGE> 3
this Third Supplemental Indenture be released from their
obligations under the Indenture as (i) such Guarantors are no
longer obligated to guarantee any indebtedness under the
Revolving Credit Facility, and (ii) no Default or Event of
Default has occurred and is continuing;
WHEREAS, each of Johnson Technology and Parts Company is
duly authorized to so guarantee the Notes and to enter into,
execute and deliver this Third Supplemental Indenture;
WHEREAS, the Company deems it advisable and not materially
adverse to the rights of any Securityholder to amend and
supplement the Indenture as provided in this Third Supplemental
Indenture; and
WHEREAS, the Company, the Guarantors and the Trustee have
done all things necessary under the Indenture to enter into this
Third Supplemental Indenture, and Johnson Technology, Parts
Company and the Company have done all things necessary to make
the guarantee herein the valid obligation of Johnson Technology
and Parts Company, respectively, in accordance with its terms.
NOW, THEREFORE, in consideration of these premises, it is
mutually covenanted and agreed for the equal and proportionate
benefit of all Holders of Securities as follows:
ARTICLE I
Unconditional Guarantee
SECTION 1.01. For value received, each of Johnson
Technology and Parts Company, jointly and severally with the
Guarantors, hereby fully, unconditionally and absolutely
guarantees to the Holders and to the Trustee, the complete and
punctual payment and performance by the Company of the
Obligations, and further agrees to pay any and all expenses
(including, without limitation, fees and disbursements of
counsel) which may be paid or incurred by the Trustee or the
Holders in enforcing their rights under the Guarantees, all in
accordance with the terms of the Securities and of the Indenture.
SECTION 1.02. Each of Johnson Technology, Parts Company and
the Company hereby agrees to be bound by each of the terms of the
Indenture that apply to the Guarantors and the Company Guarantee
to the same extent as if each of Johnson Technology and Parts
Company were a party to, and named as a Guarantor in, the
<PAGE>
<PAGE> 4
Indenture on the date thereof.
SECTION 1.03. No references herein to the Indenture and no
provision of this Third Supplemental Indenture or of the
Indenture shall alter or impair the guarantee of each of Johnson
Technology and Parts Company, which is absolute and
unconditional, of the due and punctual payment of the principal
of, premium, if any, and interest, if any, on any Security.
SECTION 1.04. The term "Guarantor," as defined in Section
1.01 of the Indenture, is hereby amended to include each of
Johnson Technology and Parts Company.
ARTICLE II
Appointment of Agent
SECTION 2.01. Each of Johnson Technology and Parts Company
hereby constitutes and appoints the Company, with power of
substitution, its true and lawful attorney-in-fact with full
power to execute and deliver on its behalf, and in its capacity
as a Guarantor of the Notes, any and all amendments to or
supplements of the Indenture and any other agreements reasonably
necessary or desirable for the following purposes:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article 5 of the Indenture;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided,
however, that the uncertificated Securities are issued
in registered form for purposes of Section 163(f) of
the Internal Revenue Code of 1986, as amended, or in
the manner such that the uncertificated Securities
are described in Section 163(f)(2)(B) of the Internal
Revenue Code of 1986, as amended;
(iv) to add guarantees with respect to the Securities;
(v) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power
herein conferred upon the Company;
<PAGE>
<PAGE> 5
(vi) to reflect the release of any Guarantor from its
Guarantee, or the addition of any Subsidiary of the
Company as a Guarantor, in the manner provided by the
Indenture;
(vii) to comply with the requirements of the SEC in
connection with the qualifying of the Indenture under
the TIA; or
(viii) to make any change that does not adversely effect the
rights of any Securityholder.
SECTION 2.02. Any action taken by the Company on behalf of
Johnson Technology or Parts Company in accordance with the
provisions of Section 2.01 shall be binding upon Johnson
Technology or Parts Company, as applicable, to the same extent as
if it had taken such action on its own.
ARTICLE III
Release of Guarantors
SECTION 3.01. Each of the following Guarantors is hereby
released in full from its obligations under the Indenture, and
the guarantee of each such Guarantor and the Company Guarantee
with respect to such Guarantee are hereby terminated and of no
further force or effect:
Burnside-Ott Aviation Training Center, Inc.;
AVMAR Incorporated;
Chemical Dynamics Incorporated;
UNC Helicopter, Inc.;
Aircraft Turbine Service, Inc.;
UNC International Sales, Inc.;
ASW Liquidating, Inc.;
UNC Air Capital Incorporated;
UNC Manufacturing Technology, Inc.;
UNC Nuclear Industries, Inc.;
SEMSA Incorporated;
Reclamation Inc.;
UNC Recovery Corporation;
United Nuclear Corporation; and
UNC Cornucopia Mining Co., Inc.
<PAGE>
<PAGE> 6
ARTICLE IV
Miscellaneous
SECTION 4.01. Except as hereby expressly modified, the
Indenture and the Securities issued thereunder are in all
respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect.
SECTION 4.02. The Trustee shall have no responsibility for
the recitals in this Third Supplemental Indenture or for the
validity or the sufficiency of this Third Supplemental Indenture.
The Trustee accepts the trust created by this Third Supplemental
Indenture upon the terms and subject to the conditions of the
Indenture.
SECTION 4.03. Any notices or demands hereafter required or
permitted by the Indenture to be given to or served upon any
Guarantor or the Corporation shall be given to or served upon the
Guarantor or the Corporation, as the case may be, at 175 Admiral
Cochrane Drive, Annapolis, Maryland 21401-7394, Attention:
Treasurer.
SECTION 4.04. Any notices or demands hereafter required or
permitted by the Indenture to be given to or served upon the
Trustee shall be given to or served upon the Trustee at Chemical
Bank, 450 West 33rd Street, 15th Floor, New York, New York 10001,
Attention: Corporate Trustee Administration Department.
SECTION 4.05. Capitalized terms used herein which are not
defined herein shall have the meanings specified in the
Indenture.
SECTION 4.06. The parties may sign any number of copies of
this Third Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same instrument.
SECTION 4.07. This Third Supplemental Indenture shall be
governed by the laws of the State of New York.
<PAGE>
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this
Third Supplemental Indenture to be duly executed, all as of the
day and year first above written.
UNC INCORPORATED
By:_____________________________
Name:
Title:
CHEMICAL BANK, as Trustee
By:_____________________________
Name:
Title:
<PAGE>
<PAGE> 8
THE GUARANTORS:
UNC JOHNSON TECHNOLOGY, INC.
By:_____________________________
Name:
Title:
UNC PARTS COMPANY
By:_____________________________
Name:
Title:
UNC ALL FAB, INC.
UNC METCALF SERVICING, INC.
UNC TRI-INDUSTRIES, INC.
UNC PACIFIC AIRMOTIVE CORPORATION,
INC.
UNC ARDCO INCORPORATED
UNC ENGINE & ENGINE PARTS, INC.
UNC TEXAS CAMCO INCORPORATED
UNC AIRWORK CORPORATION
UNC AVIATION SERVICES, INC.
UNC ACCESSORY OVERHAUL GROUP, INC.
UNC ARTEX, INC.
UNC CAMCO INCORPORATED
UNC HOLDINGS INC.
UNC/LEAR SERVICES, INC.
By: UNC Incorporated, as Agent
By:_____________________________
Name:
Title:
<PAGE>
<PAGE>
<PAGE> 1
EXHIBIT 4.12
___________________________________________________________________
___________________________________________________________________
UNC INCORPORATED
9 1/8% Senior Notes Due 2003
FOURTH SUPPLEMENTAL INDENTURE
Dated as of May 30, 1996
Supplement to Indenture
Dated as of July 15, 1993
Chemical Bank,
Trustee
___________________________________________________________________
___________________________________________________________________<PAGE>
<PAGE> 2
FOURTH SUPPLEMENTAL INDENTURE, dated as of May 30, 1996, among
UNC INCORPORATED, a Delaware corporation (the "Company"), the
corporations identified as Guarantors on the signature pages hereto
(each a "Guarantor" and collectively the "Guarantors") and CHEMICAL
BANK, a banking corporation duly organized and existing under the
laws of the State of New York, successor to Continental Bank,
National Association, as Trustee (the "Trustee").
WHEREAS, the Company, the Guarantors and the Trustee entered
into an Indenture dated as of July 15, 1993 (as amended by the
First Supplemental Indenture, dated as of August 14, 1993, the
Second Supplemental Indenture, dated as of November 5, 1993 and the
Third Supplemental Indenture, dated as of May 15, 1996, the
"Indenture"), providing for the issuance by the Company of its
9-1/8% Senior Notes due 2003 (the "Notes") and the related
guarantees of the Guarantors (the "Guarantees") (the Notes and the
Guarantees are sometimes collectively referred to herein as the
"Securities");
WHEREAS, Section 9.02 of the Indenture provides that the
Company, the Guarantors and the Trustee may, with the consent of
the Holders of a majority in principal amount of the Securities,
amend the Indenture in certain respects;
WHEREAS, on February 2, 1996, the Company commenced a
solicitation of consents (the "Consent Solicitation") of Holders of
the Securities to amendments to the Indenture (the "Amendments")
that will revise certain provisions of Sections 4.05 and 4.06 of
the Indenture;
WHEREAS, on the date hereof, pursuant to the Consent
Solicitation, consents to the Amendments have been received by the
Company from Holders of a majority in principal amount of the
Securities outstanding as of the date hereof;
WHEREAS, Section 9.01(4) of the Indenture provides that the
Company may amend the Indenture to add guarantees with respect to
the Notes and any other Obligations without notice to or consent of
any Securityholder;
WHEREAS, in accordance with Section 10.5 of the Indenture, the
Company, as beneficial owner of all the outstanding capital stock
of UNC/CFC Acquisition Co. ("Acquisition Co."), wishes to provide
for the greater security of the Holders of the Securities by
causing Acquisition Co. to guarantee the due and punctual payment
<PAGE>
<PAGE> 3
of the principal of, premium, if any, and interest, if any, on the
Notes and any other Obligations;
WHEREAS, Acquisition Co. is duly authorized to so guarantee
the Obligations and to enter into, execute and deliver this Fourth
Supplemental Indenture;
WHEREAS, the Company deems it advisable and not materially
adverse to the rights of any Securityholder to amend and supplement
the Indenture as provided in this Fourth Supplemental Indenture;
and
WHEREAS, the Company, the Guarantors, and the Trustee have
done all things necessary under the Indenture to enter into this
Fourth Supplemental Indenture and Acquisition Co. and the Company
have done all things necessary to make the guarantee herein the
valued obligation of Acquisition Co., in accordance with its terms.
NOW, THEREFORE, in consideration of the premises, it is
mutually covenanted and agreed for the equal and proportionate
benefit of all Holders of Securities as follows:
ARTICLE I
Amendments
SECTION 1.01. Section 4.05(a)(2) of the Indenture is hereby
deleted in its entirety and the following inserted in place
thereof:
(2) Indebtedness of the Company at any time
outstanding under the Revolving Credit Facility not to
exceed $110 million outstanding at any one time;
SECTION 1.02. Section 4.05(a)(4) of the Indenture is hereby
deleted in its entirety and the following inserted in place
thereof:
(4) Indebtedness of the Company (guaranteed by the
Subsidiaries on the same basis as the Securities) in an
aggregate principal amount not to exceed $125 million
issued contemporaneously with and to finance the
acquisition of assets of Garrett Aviation Services
("Garrett") pursuant to an Asset Purchase Agreement,
dated January 15, 1996, as the same may from time to time
be amended; provided that such Indebtedness (including
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<PAGE> 4
the Subsidiaries' guarantees thereof) is subordinated in right
of payment to the Securities;
SECTION 1.03. Section 4.05(a)(10) of the Indenture is hereby
deleted in its entirety and the following inserted in place
thereof:
(10) Indebtedness of the Company and the
Subsidiaries, all of the net proceeds, if any, of which
(after reasonable fees, expenses and costs, related to
the incurrence of such Indebtedness) are applied entirely
to repay or to refund outstanding Indebtedness permitted
under clauses (1), (2), (3), (4) and (9) above and this
clause (10) and any extensions or renewals of outstanding
Indebtedness under clauses (2), (3), (4) and (9) and this
clause (10) ("Refinancing Indebtedness"); provided,
however, that (A) the maximum principal amount of the
Refinancing Indebtedness permitted under this paragraph
(10) shall not exceed the maximum principal amount
outstanding (or, in the case of clause (2) above,
available) and accrued interest of the Indebtedness to be
repaid, refunded or refinanced plus the amount of
reasonable fees, expenses and costs related to the
incurrence of such Refinancing Indebtedness, (B) the
maturity of the Refinancing Indebtedness shall not be
earlier than the maturity of the Indebtedness being so
extended, renewed, refunded or refinanced, and (C) with
respect to any Refinancing Indebtedness which refinances
Indebtedness permitted under clause (3) or (4) above, the
Refinancing Indebtedness is subordinate in right of
payment to the Securities to the same extent as the
Indebtedness being so extended, renewed, refunded or
refinanced. Notwithstanding anything in the foregoing to
the contrary, the Company will not permit any Subsidiary
to, directly or indirectly, create, incur, issue, assume
or guarantee directly or indirectly any Indebtedness
except for Indebtedness permitted by clauses (1), (2),
(4), (5), (7) and (8), Indebtedness permitted by
paragraph (9) to the extent incurred in connection with
an acquisition and Refinancing Indebtedness of
Indebtedness permitted by any of such clauses subject to
clauses (A) through (C) of the proviso of this clause
(10).
SECTION 1.04. Section 4.06(a)(3) of the Indenture is hereby
deleted in its entirety and the following inserted in place
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<PAGE> 5
thereof:
(3) such Restricted Payment, together with the
aggregate of all other Restricted Payments made after the
date hereof, exceeds the sum of (x) 50% of the amount of
the Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of
the first quarter immediately after the date of this
Indenture to the end of the Company's most recently ended
quarter at the time of such Restricted Payment (or, if
Consolidated Net Income for such period is negative, 100%
of such accumulated amount) plus (y) 100% of the
aggregate net cash proceeds received by the Company from
the issue or sale after the date of this Indenture of
capital stock of the Company (other than Redeemable
Capital Stock or Exchangeable Stock and other than
capital stock issued or sold to a Subsidiary of the
Company) or any Indebtedness or other security
convertible into or exercisable for any such capital
stock (other than Redeemable Capital Stock or
Exchangeable Stock) that has been so converted or
exercised (the sum of (x) and (y) hereinafter referred to
as the "Earned Amount"); provided, however, that if the
amount of Investments made pursuant to clause (v) in
paragraph (b) below exceeds $5 million, the Company may
not, and may not permit any Subsidiary to, make any
Restricted Payment (other than (i) dividends on the
Company's Series B Senior Cumulative Convertible
Preferred Stock, par value $1.00 per share, and the
Company's Series C Senior Cumulative Preferred Stock, par
value $1.00 per share, in an aggregate amount not to
exceed $2.125 million in any fiscal year and (ii) other
Restricted Payments in the discretion of the Company in
an aggregate amount not to exceed $1 million in any
fiscal year) unless the Earned Amount (less Restricted
Payments made to such date) equals the amount of
Investments made pursuant to clause (v) in paragraph (b)
below in excess of $5 million.
SECTION 1.05. Section 4.06(b) of the Indenture is hereby
deleted in its entirety and the following inserted in place
thereof:
(b) Notwithstanding anything to the contrary
contained herein, the provisions of this Section 4.06
shall not prohibit the following (none of which will,
unless otherwise indicated, be deemed Restricted Payments
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<PAGE> 6
for purposes of reducing the amount that would be available
for Restricted Payments under clause (3) of paragraph (a)
above):
(i) the payment of cash dividends on the
Company's Series B Senior Cumulative
Convertible Preferred Stock, par value $1.00
per share, and the Company's Series C Senior
Cumulative Preferred Stock, par value $1.00
per share, in an aggregate amount not to
exceed $2.125 million in any fiscal year,
provided, however, that such express
permission will terminate as of the end of the
fiscal quarter during which the Earned Amount
first equals $10 million;
(ii) the payment of other Restricted
Payments in the discretion of the Company in
an aggregate amount not to exceed $1 million
in any fiscal year, provided, however, that
such express permission will terminate as of
the end of the fiscal quarter during which the
Earned Amount first equals $10 million;
(iii) the retirement of any shares of
the Company's capital stock in exchange for,
or out of the net cash proceeds of the
substantially concurrent sale (other than to a
Subsidiary of the Company) of, other shares of
the Company's capital stock; provided that the
retirement of any shares of capital stock out
of the net cash proceeds of the substantially
concurrent sale of other shares of the
Company's capital stock pursuant to this
clause (iii) shall reduce the amount that
would otherwise be available for Restricted
Payments under clause (3) of paragraph (a)
above;
(iv) repurchases and redemptions of the
Convertible Subordinated Debentures required
pursuant to or to be applied to the mandatory
redemption provisions of the Convertible
Subordinated Debentures as in effect on the
date of this Indenture (other than the first
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<PAGE> 7
such mandatory redemption); provided that any such
redemption or repurchase is consummated during the 12-
month period immediately preceding the date on which the
next such redemption or repurchase becomes mandatory;
(v) Investments in Affiliates in an
aggregate amount up to $20 million; or
(vi) the Permitted Joint Venture.
ARTICLE II
Unconditional Guarantee
SECTION 2.01. For value received, Acquisition Co. jointly and
severally with the Guarantors, hereby fully, unconditionally and
absolutely guarantees to the Holders and to the Trustee, the
complete and punctual payment and performance by the Company of the
Obligations, and further agrees to pay any and all expenses
(including, without limitation, fees and disbursements of counsel)
which may be paid or incurred by the Trustee or the Holders in
enforcing their rights under the Guarantees all in accordance with
the terms of the Securities and of the Indenture.
SECTION 2.02. Each of Acquisition Co. and the Company hereby
agrees to be bound by each of the terms of the Indenture that apply
to the Guarantors and the Company Guarantee to the same extent as
if Acquisition Co. was a party to, and named as a Guarantor in, the
Indenture on the date thereof.
SECTION 2.03. No references herein to the Indenture and no
provision of this Fourth Supplemental Indenture or of the Indenture
shall alter or impair the guarantee of Acquisition Co., which is
absolute and unconditional, of the due and punctual payment of the
principal of, premium, if any, and interest, if any, on any
Security.
SECTION 2.04. The term "Guarantor" is hereby amended to
include Acquisition Co.
ARTICLE III
Appointment of Agent
SECTION 3.01. Acquisition Co. hereby constitutes and appoints
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<PAGE> 8
the Company, with power of substitution, its true and lawful
attorney-in-fact with full power to execute and deliver on its
behalf, and in its capacity as a Guarantor of the Notes, any and
all amendments to or supplements of the Indenture and any other
agreements reasonably necessary or desirable for the following
purposes:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
provided, however, that the uncertificated Securities are
issued in registered form for purposes of Section 163(f)
of the Internal Revenue Code of 1986, as amended, or in
the manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Internal Revenue
Code of 1986, as amended;
(iv) to add guarantees with respect to the
Securities;
(v) to add to the covenant of the Company of or the
benefit of the Holders or to surrender any right or power
herein conferred upon the Company;
(vi) to reflect the release of any Guarantor from
its Guaranty, or the addition of any Subsidiary of the
Company as a Guarantor, in the manner provided by the
Indenture;
(vii) to comply with the requirements of the SEC in
connection with the qualifying of the Indenture under the
TIA; or
(viii) to make any change that does not adversely
effect the rights of any Securityholder.
SECTION 3.02. Any action taken by the Company on behalf of
Acquisition Co. in accordance with the provisions of Section 2.01
shall be binding upon Acquisition Co. to the same extent as if it
had taken such action on its own.
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<PAGE> 9
ARTICLE IV
Miscellaneous
SECTION 4.01. Except as hereby expressly modified, the
Indenture and the Securities issued thereunder are in all respects
ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect.
SECTION 4.02. The Trustee shall have no responsibility for
the recitals in this Fourth Supplemental Indenture or for the
validity or the sufficiency of this Fourth Supplemental Indenture.
The Trustee accepts the trust created by this Fourth Supplemental
Indenture upon the terms and subject to the conditions of the
Indenture.
SECTION 4.03. Any notices or demands hereafter required or
permitted by the Indenture to be given to or served upon any
Guarantor or the Corporation shall be given to or served upon the
Guarantor or the Corporation, as the case may be, at 175 Admiral
Cochrane Drive, Annapolis, Maryland 21401-7394, Attention:
Treasurer.
SECTION 4.04. Any notices or demands hereafter required or
permitted by the Indenture to be given to or served upon the
Trustee shall be given to or served upon the Trustee at Chemical
Bank, 450 West 33rd Street, 15th Floor, New York, New York 10001,
Attention: Corporate Trustee Administration Department.
SECTION 4.05. Capitalized terms used herein which are not
defined herein shall have the meanings specified in the Indenture.
SECTION 4.06. The parties may sign any number of copies of
this Fourth Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same instrument.
SECTION 4.07. This Fourth Supplemental Indenture shall be
governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, all as of the day and
year first above written.
<PAGE>
<PAGE> 10
UNC INCORPORATED
By:___________________________
Name:
Title:
CHEMICAL BANK, as Trustee
By:___________________________
Name:
Title:
THE GUARANTORS:
UNC/CFC ACQUISITION CO.
By:___________________________
Name:
Title:
UNC ALL FAB, INC.
UNC METCALF SERVICING, INC.
UNC TRI-INDUSTRIES, INC.
UNC PACIFIC AIRMOTIVE CORPORATION,
INC.
UNC ARDCO INCORPORATED
UNC ENGINE & ENGINE PARTS, INC.
UNC TEXAS CAMCO INCORPORATED
UNC AIRWORK CORPORATION
UNC AVIATION SERVICES, INC.
UNC ACCESSORY OVERHAUL GROUP, INC.
UNC ARTEX, INC.
UNC CAMCO INCORPORATED
UNC HOLDINGS INC.
UNC/LEAR SERVICES, INC.
UNC JOHNSON TECHNOLOGY, INC.
UNC PARTS COMPANY
By: UNC Incorporated, as Agent
By:___________________________
Name:
Title:
<PAGE>
<PAGE>
<PAGE> 1
EXHIBIT 4.13
INDENTURE dated as of May 30, 1996, among UNC
INCORPORATED, a Delaware corporation (the "Company"),
the corporations listed on Schedule I hereto (each a
"Guarantor" and collectively the "Guarantors") and THE
BANK OF NEW YORK, a New York banking corporation (the
"Trustee").
Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the
Holders of the Company's 11% Senior Subordinated Notes Due
2006 (the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions.
-----------
"Adjusted Net Assets" of a Guarantor at any date means
the lesser of: (x) the amount by which the fair value of the
property of such Guarantor at such date exceeds the total
amount of liabilities, including, without limitation, the
probable amount of contingent liabilities (after giving
effect to all other fixed and contingent liabilities
incurred or assumed on such date) of such Guarantor at such
date, but excluding liabilities under the Guarantee of such
Guarantor, and (y) the amount by which the present fair
saleable value of the assets of such Guarantor at such date
exceeds the amount that will be required to pay the probable
liability of such Guarantor on its debts (after giving
effect to all fixed and contingent liabilities incurred or
assumed on such date), excluding debt in respect of the
Guarantee of such Guarantor, as they become absolute and
matured.
"Affiliate" of any specified person means (i) any other
person which, directly or indirectly, is in control of, is
controlled by or is under common control with such specified
person, (ii) any other person who is a director or officer
(A) of such specified person, (B) of any subsidiary of such
specified person or (C) of any person described in clause
(i) above or (iii) in connection with any proposed
transaction of the Company or any Subsidiary, any person
who, upon consummation of the transaction, would be an
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<PAGE> 2
Affiliate. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or
cause the direction of the management and policies of such
person whether through the ownership of voting securities,
by agreement or otherwise; provided, however, that the
beneficial ownership of 10% or more of the voting securities
of a person shall be deemed to be control; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
"Associate" of any specified person means any
corporation or organization of which such person is an
officer or partner or is, directly or indirectly, the
beneficial owner of 10% or more of any class of equity
securities, any trust or other estate in which such person
has a substantial beneficial interest or as to which such
person serves as trustee or in a similar fiduciary capacity,
and any relative or spouse of such person, or any relative
of such spouse, who has the same home as such person.
"Board of Directors" means the Board of Directors of
the Company or any committee thereof duly authorized to act
on behalf of such Board of Directors.
"Business Day" means each day which is not a Legal
Holiday.
"Capital Lease Obligations" of a person means any
obligation which is required to be classified and accounted
for as a capital lease on the face of a balance sheet of
such person prepared in accordance with generally accepted
accounting principles; the amount of such obligation shall
be the capitalized amount thereof, determined in accordance
with generally accepted accounting principles; and the
Stated Maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease.
"Cash Equivalents" means (i) any evidence of
Indebtedness with a maturity of 180 days or less issued or
directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United
States of America is pledged in support thereof);
(ii) certificates of deposit or acceptances with a maturity
of 180 days or less of any financial institution that is a
<PAGE>
<PAGE> 3
member of the Federal Reserve System having combined capital
and surplus and undivided profits of not less than $500.0
million; and (iii) commercial paper with a maturity of 180
days or less issued by a corporation that is not an
Affiliate of the Company and is organized under the laws of
any state of the United States or the District of Columbia
and rated at least A-1 by Standard & Poor's Corporation or
at least P-1 by Moody's Investors Service, Inc.
"Change of Control" means the occurrence of any of the
following events:
(i) any person or group (within the meaning of
Section 13(d)(3) of the Exchange Act), together with
any Affiliates or Associates thereof, beneficially
owning or acquiring in a single transaction or in a
related series of transactions, by way of merger,
consolidation or other business combination, or
otherwise purchasing or acquiring, greater than 40% of
the total voting power entitled to vote in the election
of directors of the Company;
(ii) the liquidation or dissolution of the
Company; or
(iii) during any period of two consecutive years,
individuals who at the beginning of such period
constituted the Board of Directors of the Company
(together with any new directors whose election by such
Board of Directors or whose nomination for election by
the shareholders of the Company was approved by a vote
of 66-2/3 percent of the directors of the Company then
still in office who were either directors at the
beginning of such period or whose election or
nomination for election was previously so approved)
cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
"Company" means the party named as such in the caption
of this Indenture until a successor replaces it and,
thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each
other obligor on the indenture securities.
"Consolidated EBITDA" means, with respect to any
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<PAGE> 4
person, for any period, the Consolidated Net Income of such
person for such period plus (i) an amount equal to any net
loss realized upon the sale or other disposition of any
assets or property (other than inventory or assets or
property in the ordinary course) (to the extent such loss
was deducted in computing Consolidated Net Income), plus
(ii) any provision for taxes based on income or profits that
was deducted in computing Consolidated Net Income and any
provision for taxes utilized in computing net loss under
clause (i) hereof, plus (iii) consolidated interest expense
(including, without limitation, amounts allocated to
discontinued operations, amortization of original issue
discount and non-cash interest payments, all net payments
and receipts in respect of interest rate agreements and the
interest component of capital leases), plus
(iv) depreciation and amortization (including amortization
of goodwill and other intangibles) included in the
calculation of Consolidated Net Income, plus (v) any effect
of accumulated post-retirement benefit obligation as a
result of FAS 106, less (vi) Net Income from discontinued
operations (to the extent included in Consolidated Net
Income), and less (vii) any gain realized upon the sale, or
other disposition of any assets or property (other than
inventory or assets or property in the ordinary course) (to
the extent such gain was included in computing Consolidated
Net Income), in each case determined in accordance with
generally accepted accounting principles on a consolidated
basis.
"Consolidated EBITDA Coverage Ratio" means, with
respect to any person, for a given period, the ratio of
(i) Consolidated EBITDA to (ii) Consolidated Interest
Expense plus the amount of all dividend payments on any
series of Preferred Stock (except dividends paid or payable
in shares of capital stock) that is subject to mandatory
redemption, in each case, of such person and for such
period; PROVIDED, HOWEVER, that if any such calculation
requires the use of any quarter prior to the date of this
Indenture, such calculation for such quarter prior to the
date of the Indenture will be made on a pro forma basis
giving effect to the sale of the Securities and the
application of the net proceeds therefrom, as if such sale
had occurred at the beginning of such quarter; and PROVIDED,
FURTHER, HOWEVER, that such calculation shall give effect on
a pro forma basis to (x) the incurrence of any Indebtedness
<PAGE>
<PAGE> 5
in connection with the simultaneous acquisition of any
person, business, property or assets and in connection with
any acquisitions consummated during such period, (y) the
application of the net proceeds of such Indebtedness and
(z) the Consolidated EBITDA generated by such acquired
person, business, property or asset, in each case on a pro
forma basis giving effect to such incurrence, application of
proceeds and Consolidated EBITDA as if such acquisition had
occurred at the beginning of such four-quarter period. For
purposes of the foregoing proviso, Consolidated EBITDA
generated by an acquired person, business, property or asset
shall be determined based on the actual Consolidated EBITDA
generated by such person, business, property or asset during
the immediately preceding four full fiscal quarters.
"Consolidated Interest Expense", with respect to any
person, means, for any period, the aggregate interest
expense in respect of Indebtedness of such person and its
Subsidiaries for such period, on a consolidated basis,
determined in accordance with generally accepted accounting
principles, including, without limitation, (a) all net
payments and receipts in respect of interest rate
agreements, (b) the interest portion of any deferred payment
obligation, (c) the interest component of Capital Lease
Obligations, (d) amortization of debt discount and debt
issuance costs, (e) capitalized interest, (f) non-cash
interest payments, (g) commissions, discounts and other fees
and charges owed with respect to letters of credit and
bankers' acceptance financing, (h) interest in connection
with discontinued operations and (i) interest actually paid
by the Company or any of its consolidated Subsidiaries under
any guarantee of Indebtedness or other obligation of any
other person.
"Consolidated Net Income" means, with respect to any
person for any period, the aggregate of the Net Income of
such person and its Subsidiaries for such period, on a
consolidated basis, determined in accordance with generally
accepted accounting principles, provided that (i) the Net
Income of any person which is not a Subsidiary or is
accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or
distributions paid to the referent person or a Subsidiary
(of which at least 80% of the capital stock having ordinary
voting power for the election of directors or other
<PAGE>
<PAGE> 6
governing body of such Subsidiary is owned by the referent
person directly or indirectly through one or more
Subsidiaries), (ii) the Net Income of any person which is a
Subsidiary (other than a Subsidiary of which at least 80% of
the capital stock having ordinary voting power for the
election of directors or other governing body of such
Subsidiary is owned by the referent person directly or
indirectly through one or more Subsidiaries) shall be
included only to the extent of the lesser of (a) the amount
of dividends or distributions paid to the referent person or
a Subsidiary (of which at least 80% of the capital stock
having ordinary voting power for the election of directors
or other governing body of such Subsidiary is owned by the
referent person directly or indirectly through one or more
Subsidiaries), or (b) the Net Income of such person, and
(iii) the Net Income of any person acquired in a pooling of
interests transactions for any period prior to the date of
such acquisition shall be excluded.
"Consolidated Net Worth" of any person means the total
of the amounts shown on the balance sheet of such person and
its consolidated subsidiaries, determined on a consolidated
basis in accordance with generally accepted accounting
principles, as of the end of the most recent fiscal quarter
of such person ending at least 45 days prior to the taking
of any action for the purpose of which the determination is
being made, as (i) the par or stated value of all
outstanding capital stock of such person plus (ii) paid-in
capital or capital surplus relating to such capital stock
plus (iii) any retained earnings or earned surplus less
(A) any accumulated deficit, (B) any amounts attributable to
Redeemable Capital Stock and (C) any amounts attributable to
Exchangeable Stock.
"Convertible Subordinated Debentures" means the
Company's 7-1/2% Convertible Subordinated Debentures Due
2006 having an aggregate principal amount outstanding not to
exceed $69,000,000.
"Corporate Trust Office" of the Trustee shall be at the
address of the Trustee specified in Section 13.02 or such
other address as to which the Trustee may give notice to the
Company and the Guarantors.
"Default" means any event which is, or after
<PAGE>
<PAGE> 7
notice or passage of time or both would be, an Event of
Default.
"Depository" means The Depository Trust Company, its
nominees and their respective successors.
"Designated Senior Debt" means the Revolving Credit
Facility and any other Senior Debt of the Company and the
Guarantors permitted under this Indenture, the principal
amount of which is $20 million or more at the time of
designation and is specifically designated by the Company or
a Guarantor, as the case may be, in the instrument
evidencing such Senior Debt and in a written instrument
delivered to the Trustee.
"Equity Interests" means capital stock, or other equity
interests or warrants, options or other rights to acquire,
or that are measured in relation to, capital stock or other
equity interests (but excluding any debt security that is
convertible into, or exchangeable for, capital stock).
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exchangeable Stock" means any capital stock which is
exchangeable or convertible into another security (other
than capital stock of the Company which is neither
Exchangeable Stock nor Redeemable Capital Stock) prior to
the first anniversary of the Stated Maturity of the
Securities.
"Exchange Securities" means the 11% Senior Subordinated
Notes Due 2006 to be issued pursuant to this Indenture in
connection with a Registered Exchange Offer pursuant to the
Registration Rights Agreement.
"Guarantee" means each of the guarantees of the
Securities by the Guarantors.
"Guarantor" means each of the entities set forth on
Schedule I hereto until a successor replaces it and,
thereafter, means the successor, and each other person that
becomes a Guarantor pursuant to the terms of this Indenture.
<PAGE>
<PAGE> 8
"Holder" or "Securityholder" means the person in whose
name a Security is registered on the Registrar's books.
"Indebtedness" of any person means, without
duplication,
(i) the principal of and premium (if any) in
respect of (A) indebtedness of such person for money
borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the
payment of which such person is responsible or liable;
(ii) all Capital Lease Obligations of such
person;
(iii) all obligations of such person issued or
assumed as the deferred purchase price of property, all
conditional sale obligations of such person and all
obligations of such person under any title retention
agreement (but excluding trade accounts payable arising
in the ordinary course of business);
(iv) all obligations of such person for the
reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction
(other than obligations with respect to letters of
credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in
the ordinary course of business of such person to the
extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is
reimbursed no later than the third Business Day
following receipt by such person of a demand for
reimbursement following payment on the letter of
credit);
(v) the amount of all obligations of such person
with respect to the redemption, repayment or other
repurchase of any Redeemable Capital Stock (but
excluding any accrued dividends);
(vi) all obligations of the type referred to in
clauses (i) through (v) of other persons and all
dividends of other persons for the payment of which, in
either case, such person is responsible or liable,
<PAGE>
<PAGE> 9
directly or indirectly, as obligor, guarantor or
otherwise, including by means of any agreement which
has the economic effect of a guarantee; and
(vii) all obligations of the type referred to in
clauses (i) through (vi) of other persons secured by
any Lien on any property or asset of such person
(whether or not such obligation is assumed by such
person), the amount of such obligation being deemed to
be the lesser of the value of such property or assets
or the amount of the obligation so secured.
"Indebtedness Obligations" means any principal,
interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the
documentation governing any Indebtedness.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Initial Purchasers" means CS First Boston Corporation
and First Union Capital Markets Corp.
"Initial Securities" means the 11% Senior Subordinated
Notes Due 2006 issued under this Indenture on or about the
date hereof.
"Investment" in any person means any loan or advance
(not including extension of trade credit in the ordinary
course) to, any acquisition of capital stock, equity
interest, obligation or other security of, or capital
contribution or other investment in, such person, whether
direct or indirect.
"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, and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or
equivalent statutes), other than a consignor or lessor under
Section 9-408 thereof, of any jurisdiction).
"Net Income" of any person means the net income
<PAGE>
<PAGE> 10
(loss) of such person, determined in accordance with
generally accepted accounting principles.
"Net Proceeds" means, with respect to any Asset Sale,
the aggregate proceeds in the form of cash or Cash
Equivalents received by the Company or any of its
Subsidiaries in respect of such 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), net of all
amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that
are the subject of such Asset Sale and net of any reserve
for adjustment in respect of the sale price of such asset or
assets required by generally accepted accounting principles.
"9-1/8% Senior Notes" means the Company's 9-1/8% Senior
Notes Due 2003 having an aggregate principal amount
outstanding not to exceed $100,000,000.
"Obligations" means the principal of, premium, if any,
and interest on the Securities and all other amounts due and
payable under this Indenture and the Securities and all
other obligations and liabilities of the Company whether
direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may arise
under, out of or in connection with this Indenture and the
Securities or any other documents made, delivered or given
in connection therewith, whether on account of principal,
premium, if any, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including without limitation
all fees and disbursements of counsel to the Trustee or the
Holders for which the Company has become obligated pursuant
to the terms of this Indenture) or otherwise.
"Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer or the
Secretary of the Company or any Guarantor.
"Officers' Certificate" means a certificate signed by
two Officers, one of which, in the case of an Officers'
Certificate delivered pursuant to Section 4.16, shall be the
<PAGE>
<PAGE> 11
principal executive, principal financial or principal
accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may
be an employee of or counsel to the Company or the Trustee.
"Permitted Liens" means: (i) Liens for taxes or
assessments and similar charges either (a) not delinquent or
(b) contested in good faith by appropriate proceedings and
as to which the Company or the relevant Subsidiary shall
have set aside on its books adequate reserves; (ii) Liens
incurred or pledges and deposits in connection with worker's
compensation, unemployment insurance and other social
security benefits, leases, appeal bonds and other
obligations of like nature, incurred by the Company or any
Subsidiary in the ordinary course of business; (iii) Liens
imposed by law such as mechanics', carriers',
warehousemen's, materialmen's, suppliers' and vendors'
Liens, incurred in good faith by the Company or any
Subsidiary in the ordinary course of business; (iv) zoning
restrictions, easements, licenses, covenants, reservations,
restrictions on the real property or minor irregularities of
title incident thereto which do not in the aggregate
materially impair the use of such property in the operation
of the business of the Company or any Subsidiary; (v) Liens
of landlords or mortgages of landlords, arising solely by
operation of law, on fixtures and movable property located
on premises leased by the Company or any Subsidiary in the
ordinary course of business; (vi) judgment Liens not giving
rise to an Event of Default so long as appropriate legal
proceedings which may have been duly initiated for the
review of such judgment shall not have been terminated or
the period within which such proceedings may be initiated
shall not have expired; (vii) Liens securing reimbursement
obligations for commercial letters of credit that encumber
goods, or documents of title covering goods, that are
purchased in transactions for which such commercial letters
of credit are issued; (viii) Liens arising from a non-
recourse sale of accounts receivable; (ix) the Lien in
effect on the date hereof created under that certain
operating lease agreement, dated January 4, 1993, between
General Electric Capital Corporation and the Company; and
(x) Liens arising pursuant to any order of attachment or
<PAGE>
<PAGE> 12
similar legal process arising in connection with court
proceedings, provided that the execution or other
enforcement thereof does not remain unstayed for a period of
more than 30 days and the claims secured thereby are being
contested in good faith by appropriate proceedings.
"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.
"Preferred Stock", as applied to the capital stock of
any corporation, means capital stock of any class or classes
(however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such
corporation, over shares of capital stock of any other class
of such corporation.
"principal" of a Security means the principal of the
Security plus the premium (if any) payable on the Security
which is due or overdue or is to become due at the relevant
time.
"Private Exchange" means the offer by the Company,
pursuant to the Registration Rights Agreement, to the
Initial Purchasers to issue and deliver to the Initial
Purchasers, in exchange for the Initial Securities held by
the Initial Purchasers as part of their initial
distribution, a like aggregate principal amount of Private
Exchange Securities.
"Private Exchange Securities" means the 11% Senior
Subordinated Exchange Notes Due 2006 to be issued pursuant
to this Indenture in connection with a Private Exchange
effected pursuant to the Registration Rights Agreement.
"Redeemable Capital Stock" means any class or series of
capital stock that, either by its terms, by the terms of any
security into which it is convertible or exchangeable or by
contract or otherwise, is, or upon the happening of an event
or passage of time would be, required to be redeemed prior
to the first anniversary of the final Stated Maturity of the
Securities or is redeemable at the
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<PAGE> 13
option of the holder thereof at any time prior to such
anniversary, or is convertible into or exchangeable for debt
securities at any time prior to such anniversary.
"Registered Exchange Offer" means an offer by the
Company, pursuant to the Registration Rights Agreement, to
certain Holders of Initial Securities, to issue and deliver
to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of Exchange Securities
registered under the Securities Act.
"Registration Rights Agreement" means the Registration
Rights Agreement dated May 23, 1996 among the Company, the
Guarantors and the Initial Purchasers.
"Revolving Credit Facility" means the Amended and
Restated Credit Agreement, dated as of May 22, 1996, among
the Company, the lenders who are or may become a party
thereto, First Union Commercial Corporation as
administrative agent and as collateral agent and First Union
National Bank of North Carolina, as the issuing bank for
letters of credit issued thereunder, as the same may be
further amended, extended, replaced, modified or
supplemented from time to time (including by the addition of
Subsidiaries as borrowers thereunder) and any refinancing
thereof (whether on a term loan or revolving loan basis).
"SEC" means the Securities and Exchange Commission.
"Securities" means the Initial Securities, the Exchange
Securities and the Private Exchange Securities, treated as a
single class.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Custodian" means the custodian with respect
to a Global Security (as appointed by the Depository), or
any successor person thereto and shall initially be the
Trustee.
"Senior Debt" means: (A) with respect to the Company,
the principal of and interest (including post-petition
interest whether or not allowable as a claim) on,
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<PAGE> 14
and all other amounts owing in respect of, (a) Indebtedness
under the Revolving Credit Facility, and (b) any other
Indebtedness permitted to be incurred by the Company under
the terms of this Indenture, unless the instrument creating
or evidencing such Indebtedness or pursuant to which such
Indebtedness is outstanding expressly provides that such
Indebtedness is not senior in right of payment to the
Securities; and (B) with respect to any Guarantor, the
principal of and interest (including post-petition interest
whether or not allowable as a claim) on, and all other
amounts owing in respect of, (a) the Revolving Credit
Facility, and (b) any other Indebtedness permitted to be
incurred by such Guarantor under the terms of this
Indenture, unless the instrument creating or evidencing such
Indebtedness or pursuant to which such Indebtedness is
outstanding expressly provides that such Indebtedness is not
senior in right of payment to the Guarantee of such
Guarantor. Notwithstanding the foregoing, Senior Debt shall
not include (i) any Indebtedness that is represented by
Redeemable Capital Stock, (ii) any liability for federal,
state, local, or other taxes, (iii) any Indebtedness among
or between the Company, any Subsidiary or any of their
Affiliates, (iv) any trade payables and any Indebtedness
incurred for the purchase of goods or materials, or for
services obtained, in the ordinary course of business or any
obligations in respect of any such Indebtedness,
(v) Indebtedness of a person that is subordinate or junior
in any respect to any other Indebtedness of such person,
(vi) Indebtedness owed, due, or guaranteed on behalf of, any
director, officer or employee of the Company or any
Subsidiary (including without limitation amounts owed for
compensation), (vii) Indebtedness of a person which when
incurred and without respect to any election under Section
1111(b) of Title 11 United States Code, is without recourse
to such person, (viii) the Convertible Subordinated
Debentures, which shall rank junior in right of payment to
the Securities or (ix) any Indebtedness that is incurred in
violation of this Indenture.
"Shelf Registration Statement" means the registration
statement issued by the Company, in connection with the
offer and sale of Initial Securities or Private Exchange
Securities, pursuant to the Registration Rights Agreement.
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<PAGE> 15
"Stated Maturity" means, with respect to any security,
the date specified in such security as the fixed date on
which the principal of such security is due and payable,
including pursuant to any mandatory redemption provision
(but excluding any provision providing for the repurchase of
such security at the option of the holder thereof upon the
happening of any contingency).
"Subsidiary" means any person of which at least a
majority of the capital stock having ordinary voting power
for the election of directors or other governing body of
such person is beneficially owned by the Company directly or
through one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date of this
Indenture, except as provided in Section 9.03.
"Transfer Restricted Securities" means Definitive
Securities and Securities that bear or are required to bear
the legend set forth in Section 2.06(d).
"Trustee" means the party named as such in the caption
of this Indenture until a successor replaces it and,
thereafter, means the successor.
"Trust Officer" means any officer or authorized
signatory of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"U.S. Government Obligations" means direct obligations
(or certificates representing an ownership interest in such
obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which
the full faith and credit of the United States of America is
pledged and which are not callable at the issuer's option.
"Wholly Owned Subsidiary" means a Subsidiary all the
capital stock of which (other than directors' qualifying
shares) is owned by the Company or another Wholly Owned
Subsidiary.
<PAGE>
<PAGE> 16
SECTION 1.02 Other Definitions.
-----------------
Term Defined in
- ---- Section
----------
"Asset Sale" 4.08
"Authorized Agent" 10.07
"Bankruptcy Law" 6.01
"blockage period" 11.03
"Change of Control Offer" 4.15
"Change of Control Payment Date" 4.15
"Company Guarantee" 10.01
"covenant defeasance option" 8.01
"Custodian" 6.01
"Definitive Securities" 2.01
"Disinterested Directors" 4.09
"Event of Default" 6.01
"Earned Amount" 4.06
"Funding Guarantor" 10.03
"Global Security" 2.01
"Guarantee" 10.01
"Guarantee blockage period" 12.03
"Guarantor Payment" 12.02
"Guarantor Payment Default" 12.03
"Guarantor Proceeding" 12.02
"Guarantor Senior Nonmonetary Default" 12.03
"IAI" 2.01
"Incurrence Date" 4.05
"Judgment Currency" 10.09
"legal defeasance option" 8.01
"Legal Holiday" 13.08
"Non-U.S. Guarantor" 10.07
"Offer" 4.08
"Offer Amount" 4.08
"Offer Period" 4.08
"Paying Agent" 2.03
"Proceeding" 11.02
"Purchase Date" 4.08
"QIB" 2.01
"Refinancing Indebtedness" 4.05
"Registrar" 2.03
"Regulation S" 2.01
"Restricted Payment" 4.06
"Rule 144A" 2.01
"Securities Payment" 11.02
<PAGE>
<PAGE> 17
"Senior Nonmonetary Default" 11.03
"Senior Payment Default" 11.03
"Series B Preferred Stock" 4.06
"Series C Preferred Stock" 4.06
"Significant Subsidiary" 4.13
"Trigger Date" 4.15
SECTION 1.03 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:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a
Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee"
means the Trustee.
"obligor" on the indenture securities means the
Company and any other obligor on the indenture
securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule have the meanings assigned to
them by such definitions.
SECTION 1.04 RULES OF CONSTRUCTION. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally
accepted accounting principles as in effect on the date
of this Indenture;
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<PAGE> 18
(3) "or" is not exclusive;
(4) "including" means including, without
limitation;
(5) words in the singular include the plural and
words in the plural include the singular;
(6) unsecured debt shall not be deemed to be
subordinate or junior to secured debt merely by virtue
of its nature as unsecured debt;
(7) the principal amount of any noninterest
bearing or other discount security at any date shall be
the principal amount thereof that would be shown on a
balance sheet of the issuer dated such date prepared in
accordance with generally accepted accounting
principles and accretion of principal on such security
shall be deemed to be the issuance of Indebtedness; and
(8) the principal amount of any Preferred Stock
shall be (i) the maximum liquidation value of such
Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
--------------
SECTION 2.01 FORM AND DATING. The Initial Securities
and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture.
The Exchange Securities, the Private Exchange Securities and
the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B, which is hereby
incorporated by reference and expressly made a part of this
Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is
in a form acceptable to the Company). Each Security shall
be dated the date of its authentication. The
<PAGE>
<PAGE> 19
terms of the Securities set forth in Exhibit A and Exhibit B
are part of the terms of this Indenture.
The Initial Securities are being offered and sold by the
Company pursuant to a Purchase Agreement, dated May 23,
1996, among the Company, the Guarantors and the Initial
Purchasers (the "Purchase Agreement").
(a) GLOBAL SECURITIES. Initial Securities offered and
sold to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) (a "QIB") in reliance on
Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act
("Regulation S"), in each case as provided in the Purchase
Agreement, shall be issued initially in the form of one
permanent global Security in definitive, fully registered
form without interest coupons with the global Security
legend and restricted Security legend set forth in Exhibit A
hereto (the "Global Security"), which shall be deposited on
behalf of the purchasers of the Initial Securities
represented thereby with the Trustee, at its New York
office, as custodian for the Depository (or with such other
custodian as the Depository may direct), and registered in
the name of the Depository or a nominee of the Depository,
duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal
amount of the Global Security may from time to time be
increased or decreased by adjustments made on the records of
the Trustee and the Depository or its nominee as hereinafter
provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.01(b) shall
apply only to the Global Security deposited with or on
behalf of the Depository.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(b), authenticate and
deliver initially one Global Security that (a) shall be
registered in the name of the Depository or the nominee of
the Depository and (b) shall be delivered by the Trustee to
the Depository or pursuant to the Depository's instructions
or held by the Trustee as custodian for the Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture
<PAGE>
<PAGE> 20
with respect to the Global Security held on their behalf by
the Depository or by the Trustee as the custodian of the
Depository or under such Global Security, and the Depository
may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstand-
ing 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 Depository or impair, as
between the Depository and its Agent Members, the operation
of customary practices of such Depository governing the
exercise of the rights of a holder of a beneficial interest
in the Global Security.
(c) CERTIFICATED SECURITIES. Except as provided in
this Section or Section 2.06 or 2.09, owners of beneficial
interests in the Global Security will not be entitled to
receive physical delivery of certificated Securities.
Purchasers of Initial Securities who are institutional
"accredited investors" as described in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act (each an "IAI") and who
are not QIBs and did not purchase Initial Securities sold in
reliance on Regulation S will receive certificated Initial
Securities bearing the restricted securities legend set
forth in Exhibit A hereto (such securities as held by an IAI
are herein referred to as "Definitive Securities");
PROVIDED, HOWEVER, that upon transfer of such certificated
Initial Securities to a QIB or in reliance on Regulation S
such certificated Initial Securities will, unless the Global
Security has previously been exchanged, be exchanged for an
interest in the Global Security pursuant to the provisions
of Section 2.06. Definitive Securities will bear the
restricted securities legend set forth on Exhibit A unless
removed in accordance with Section 2.06(d).
SECTION 2.02 EXECUTION AND AUTHENTICATION. Two
Officers shall sign the Securities for the Company by manual
or facsimile signature. The Company's seal shall be
impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no
longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid
<PAGE>
<PAGE> 21
nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of
authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and deliver (1) Initial
Securities for original issue in an aggregate principal
amount of $125,000,000, and (2) Exchange Securities or
Private Exchange Securities for issue only in a Registered
Exchange Offer or a Private Exchange, respectively, pursuant
to the Registration Rights Agreement, for a like principal
amount of Initial Securities, in each case upon a written
order of the Company signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary
of the Company. Such order shall specify the amount of the
Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated and
whether the Securities are to be Initial Securities,
Exchange Securities or Private Exchange Securities. The
aggregate principal amount of Securities outstanding at any
time may not exceed $125,000,000 except as provided in
Section 2.07.
The Trustee may appoint an authenticating agent
reasonably acceptable to the Company to authenticate the
Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate
Securities 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 any Registrar, Paying Agent or agent for
service of notices and demands.
SECTION 2.03 REGISTRAR AND PAYING AGENT. The Company
shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be
presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The
term "Paying Agent" includes
<PAGE>
<PAGE> 22
any additional paying agent.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar
not a party to this Indenture, which shall incorporate the
terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of
any such agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act
as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar
and Paying Agent in connection with the Securities.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
Prior to each due date of the principal and interest on any
Security, the Company shall deposit with the Paying Agent a
sum sufficient to pay such principal and interest when so
becoming due. 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 Securityholders
or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities and
shall notify the Trustee of any default by the Company in
making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by
it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
SECTION 2.05 SECURITYHOLDER 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 Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in
writing at least five Business Days before each interest
payment date and at such other times as the Trustee may
<PAGE>
<PAGE> 23
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 Securityholders.
SECTION 2.06 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When
Definitive Securities are presented to the Registrar or a
co-registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an
equal principal amount of Definitive Securities of
other authorized denominations,
the Registrar or co-registrar shall register the transfer or
make the exchange as requested if the requirements of this
Indenture and Section 8-401(1) of the Uniform Commercial
Code are met; PROVIDED, HOWEVER, that the Definitive
Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably
satisfactory to the Company and the Registrar or co-
registrar, duly executed by the Holder thereof or such
Holder's attorney duly authorized in writing; and
(ii) are being transferred or exchanged pursuant
to an effective registration statement under the
Securities Act, pursuant to Section 2.06(b) or pursuant
to clause (A), (B) or (C) below, and are accompanied by
the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect (in the form set forth on the reverse of
the Security); or
(B) if such Definitive Securities are being
transferred to the Company a certification to that
effect (in the form set forth on the reverse of
<PAGE>
<PAGE> 24
the Security); or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from
registration in accordance with Rule 144 or
Regulation S under the Securities Act: (i) a
certificate to that effect (in the form set forth
on the reverse of the Security), and (ii) if the
Company or Registrar so requests, evidence
reasonably satisfactory to them as to the
compliance with the restrictions set forth in the
legend set forth in Section 2.06(d)(i).
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY
FOR A BENEFICIAL INTEREST IN THE GLOBAL SECURITY. A
Definitive Security may not be exchanged for a beneficial
interest in the Global Security except upon satisfaction of
the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accom-
panied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) certification, in the form set forth on the
reverse of the Security, that such Definitive Security
is being transferred to a QIB in accordance with Rule
144A under the Securities Act or to a non-U.S. person
in accordance with Rule 904 under the Securities Act;
and
(ii) written instructions directing the Trustee
to make, or to direct the Securities Custodian to make,
an adjustment on its books and records with respect to
such Global Security to reflect an increase in the
aggregate principal amount of the Securities repre-
sented by the Global Security,
then the Trustee shall cancel such Definitive Security and
cause, or direct the Securities Custodian to cause, in
accordance with the standing instructions and procedures
existing between the Depository and the Securities
Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased accord-
ingly. If no Global Security is then outstanding, the
Company shall issue and the Trustee shall authenticate, upon
written order of the Company in the form of an Officers'
<PAGE>
<PAGE> 25
Certificate, a new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities.
------------------------------------------
(i) The transfer and exchange of the Global
Security or beneficial interests therein shall be
effected through the Depository, in accordance with
this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures
of the Depository therefor, if applicable.
(ii) Notwithstanding any other provisions of this
Indenture (other than the provisions set forth in
Section 2.09), the Global Security may not be trans-
ferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or
by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.
(iii) In the event that the Global Security is
exchanged for Securities in definitive form pursuant to
Section 2.09, prior to the consummation of a Registered
Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities,
such Securities may be exchanged only in accordance
with such procedures as are substantially consistent
with the provisions of this Section 2.06 (including the
certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such
transfers comply with Rule 144A or Regulation S, as the
case may be) and such other procedures as may from time
to time be adopted by the Company.
(d) LEGEND.
------
(i) Except as permitted by the following
paragraphs (ii) and (iii) each Security certificate
evidencing the Global Security and the Definitive
Securities (and all Securities issued in exchange
therefor or substitution thereof) shall bear a legend
in substantially the following form:
<PAGE>
<PAGE> 26
"THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND UNDER APPLICABLE STATE
SECURITIES LAWS, AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (i) TO A
PERSON WHOM 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, (ii) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE) OR (iv) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF CASES (i) THROUGH (iv) IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE."
When set forth on a Definitive Security, the legend
will include the following additional words:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted
Security represented by the Global Security) pursuant
to Rule 144 under the Securities Act:
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<PAGE> 27
(A) in the case of any Transfer Restricted
Security that is a Definitive Security, the
Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a
certificated Security that does not bear the
legend set forth above and rescind any restriction
on the transfer of such Transfer Restricted
Security;
(B) in the case of any Transfer Restricted
Security that is represented by the Global
Security, the Registrar shall permit the Holder
thereof to request the issuance of a certificated
Security that does not bear the legend set forth
above and rescind any restrictions on the transfer
of such Transfer Restricted Security, if the sale
or exchange was made in reliance on Rule 144 and
the Holder certifies to that effect in writing to
the Registrar (such certification to be in the
form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Securities
or Private Exchange Securities during the period of the
effectiveness of a Shelf Registration Statement with
respect to such Initial Securities or Private Exchange
Securities, as the case may be, all requirements
pertaining to legends on such Initial Security or such
Private Exchange Security will cease to apply, the
requirements requiring any such Initial Security or
such Private Exchange Security issued to certain
Holders be issued in global form will cease to apply,
and a certificated Initial Security or Private Exchange
Security without legends will be available to the trans-
feree of the Holder of such Initial Securities or
Private Exchange Securities or upon receipt of direc-
tions to transfer such Holder's interest in the Global
Security, as applicable.
(iv) Upon the consummation of a Registered
Exchange Offer with respect to the Initial Securities
pursuant to which Holders of such Initial Securities
are offered Exchange Securities in exchange for their
Initial Securities, all requirements pertaining to such
Initial Securities that Initial Securities issued to
certain Holders be issued in global form will cease to
<PAGE>
<PAGE> 28
apply and certificated Initial Securities with the
restricted securities legend set forth in Exhibit A
hereto will be available to Holders of such Initial
Securities that do not exchange their Initial Securi-
ties and Exchange Securities in certificated form will
be available to Holders that exchange such Initial
Securities in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange
with respect to the Initial Securities pursuant to
which Holders of such Initial Securities are offered
Private Exchange Securities in exchange for their
Initial Securities, all requirements pertaining to such
Initial Securities that Initial Securities issued to
certain holders be issued in global form will still
apply, and Private Exchange Securities in global form
with the restricted securities legend set forth in
Exhibit A hereto will be available to Holders that
exchange such Initial Securities in such Private
Exchange.
(e) CANCELLATION OR ADJUSTMENT OF GLOBAL SECURITY. At
such time as all beneficial interests in the Global Security
have either been exchanged for certificated Securities,
redeemed, repurchased or cancelled, such Global Security
shall be returned to the Depository for cancellation or
retained and cancelled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in the Global
Security is exchanged for certificated Securities, redeemed,
repurchased or cancelled, the principal amount of Securities
represented by such Global Security shall be reduced and an
adjustment shall be made by the Trustee or the Securities
Custodian to reflect such reduction on the books and records
of the Securities Custodian for such Global Security with
respect to such Global Security.
(f) OBLIGATIONS WITH RESPECT TO TRANSFERS AND
EXCHANGES OF SECURITIES.
(i) To permit registration of transfers and
exchanges, the Company shall execute and the Trustee
shall authenticate certificated Securities, Definitive
Securities and the Global Security at the Registrar's
or co-registrar's
<PAGE>
<PAGE> 29
request.
(ii) The Company may require payment of a sum
sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or
exchange pursuant to this Section 2.06.
(iii) The Company shall not be required to make
and the Registrar or co-registrar need not register
transfers or exchanges of certificated or Definitive
Securities selected for redemption (except, in the case
of any Definitive Security to be redeemed in part, the
portion thereof not to be redeemed), or any Securities
for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest
payment date.
(iv) Prior to the due presentation for
registration of transfer of any Security, the Company,
the Trustee, the Paying Agent, the Registrar or any co-
registrar may deem and treat the person in whose name a
Security is registered as the absolute owner of such
Security for the purpose of receiving payment of
principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security
is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall
be affected by notice to the contrary.
(v) All Securities issued upon any transfer or
exchange pursuant to the terms of this Indenture will
evidence the same debt and will be entitled to the same
benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(g) NO OBLIGATION OF THE TRUSTEE.
------------------
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner or the Global
Security, a member of, or a participant in
<PAGE>
<PAGE> 30
the Depository or other Person with respect to the
accuracy of the records of the Depository or its
nominee or of any participant or member thereof, with
respect to any ownership interest in the Securities or
with respect to the delivery to any participant,
member, beneficial owner or other Person (other than
the Depository) of any notice (including any notice of
redemption) or the payment of any amount, under or with
respect to such Securities. All notices and
communications to be given to the Holders and all
payments to be made to Holders under the Securities
shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or
its nominee in the case of the Global Security). The
rights of beneficial owners in the Global Security
shall be exercised only through the Depository subject
to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully
protected in relying upon information furnished by the
Depository with respect to its members, participants
and any beneficial owners.
(ii) The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with
any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any
transfers between or among Depository participants,
members or beneficial owners in the Global Security)
other than to required delivery of such certificates
and other documentation or evidence as are expressly
required by, and to do so if and when expressly
required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as
to form with the express requirements hereof.
SECTION 2.07. REPLACEMENT SECURITIES. If a mutilated
Security is surrendered to the Registrar or if the Holder of
a Security claims that the Security has been lost, destroyed
or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security if the
<PAGE>
<PAGE> 31
requirements of Section 8-405 of the Uniform Commercial Code
are met and the Holder satisfies any other reasonable
requirements of the Trustee. Such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss
which any of them may suffer if a Security is replaced. The
Company and the Trustee may charge the Holder for their
expenses in replacing a Security.
Every replacement Security is an additional obligation
of the Company evidencing the same debt as the Security for
which it is a replacement.
SECTION 2.08 OUTSTANDING SECURITIES. Securities
outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those
delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate of the
Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced
Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or
maturity date money sufficient to pay all principal and
interest payable on that date with respect to the Securities
(or portions thereof) to be redeemed or maturing, as the
case may be, and the Paying Agent is not prohibited from
paying such money to the Securityholders on that date
pursuant to the terms of this Indenture, then on and after
that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09 TEMPORARY SECURITIES AND CERTIFICATED
SECURITIES. (a) Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities
but may have variations that the Company considers
appropriate for temporary Securities. Without
<PAGE>
<PAGE> 32
unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities and deliver
them in exchange for temporary Securities.
(b) The Global Security deposited with the Depository
or with the Trustee as custodian for the Depository pursuant
to Section 2.01 shall be transferred to the beneficial
owners thereof in the form of certificated Securities in an
aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security,
only if such transfer complies with Section 2.06 and (i) the
Depository notifies the Company that it is unwilling or
unable to continue as Depository for such Global Security or
if at any time such Depository ceases to be a "clearing
agency" registered under the Exchange Act and a successor
depository is not appointed by the Company within 90 days of
such notice, (ii) an Event of Default has occurred and is
continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the
issuance of certificated Securities under this Indenture.
(c) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section shall be
surrendered by the Depository to the Trustee located in the
Borough of Manhattan, The City of New York, to be so
transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an
equal aggregate principal amount of Initial Securities of
authorized denominations. Any portion of the Global
Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations
of $1,000 and any integral multiple thereof and registered
in such names as the Depository shall direct. Any Initial
Security delivered in exchange for an interest in the Global
Security shall, except as otherwise provided by Section
2.06(d), bear the restricted securities legend set forth in
Exhibit A hereto.
(d) Subject to the provisions of Section 2.09(c), the
registered Holder of the Global Security may grant proxies
and otherwise authorize any person, including agent members,
participants and persons that may hold interests through
agent members, to take any action which a Holder is
<PAGE>
<PAGE> 33
entitled to take under this Indenture or the Securities.
(e) In the event of the occurrence of any of the
events specified in Section 2.09(b), the Company will
promptly make available to the Trustee a reasonable supply
of certificated Securities in definitive, fully registered
form without interest coupons.
SECTION 2.10. CANCELLATION. The Company at any time
may deliver Securities to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else
shall cancel all Securities surrendered for registration of
transfer, exchange, payment or cancellation and deliver such
cancelled Securities to the Company. The Company may not
issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST. If the Company
defaults in a payment of interest on the Securities, the
Company shall pay defaulted interest (plus interest on such
defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the
persons who are Securityholders on a subsequent special
record date, which date shall be at least five Business Days
prior to the payment date. The Company shall fix or cause
to be fixed any such special record date and payment date,
and, at least 15 days before any such special record date,
the Company shall mail to each Securityholder a notice that
states the special record date, the payment date and the
amount of defaulted interest to be paid.
SECTION 2.12 CUSIP NUMBERS. The Company in issuing
the Securities may use "CUSIP" numbers (if then generally in
use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED
that any such notice may state that no representation is
made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or
omission of such numbers. The Company will
<PAGE>
<PAGE> 34
promptly notify the Trustee of any change in the CUSIP
numbers.
ARTICLE 3
Redemption
----------
SECTION 3.01 NOTICES TO TRUSTEE. If the Company
elects to redeem Securities pursuant to paragraph 5 of the
Securities, it shall notify the Trustee in writing of the
redemption date, the principal amount of Securities to be
redeemed and the paragraph of the Securities pursuant to
which the redemption will occur.
The Company shall give each notice to the Trustee
provided for in this Section at least 60 days before the
redemption date unless the Trustee consents to a shorter
period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to
the effect that such redemption will comply with the
conditions herein. If fewer than all the Securities are to
be redeemed, the record date relating to such redemption
shall be selected by the Company and given to the Trustee,
which record date shall be not less than 15 days after the
date of notice to the Trustee.
SECTION 3.02 SELECTION OF SECURITIES TO BE REDEEMED.
If fewer than all the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed pro rata
or by lot or by a method that complies with applicable legal
and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance
with methods generally used at the time of selection by
fiduciaries in similar circumstances. The Trustee shall
make the selection from outstanding Securities not
previously called for redemption. The Trustee may select
for redemption portions of the principal of Securities that
have denominations larger than $1,000. Securities and
portions of them the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
The Trustee shall notify the Company promptly of the
Securities or portions of Securities to be
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<PAGE> 35
redeemed.
SECTION 3.03 NOTICE OF REDEMPTION. At least 30 days
but not more than 60 days before a date for redemption of
Securities, the Company shall mail a notice of redemption by
first-class mail to each Holder of Securities to be
redeemed.
The notice shall identify the Securities (including
CUSIP numbers) to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price;
(5) if fewer than all the outstanding Securities
are to be redeemed, the identification and principal
amounts of the particular Securities to be redeemed;
(6) that, unless the Company defaults in making
such redemption payment or the Paying Agent is
prohibited from making such payment pursuant to the
terms of this Indenture, interest on Securities (or
portion thereof) called for redemption ceases to accrue
on and after the redemption date;
(7) the paragraph of the Securities pursuant to
which the Securities 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 Securities.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the
Company's expense. In such event, the Company shall provide
the Trustee with the information required by this Section.
<PAGE>
<PAGE> 36
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION. Once
notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and
at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid
at the redemption price stated in the notice, plus accrued
interest to the redemption date. Failure to give notice or
any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE. On or prior
to the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or a Subsidiary is the
Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other
than Securities or portions of Securities called for
redemption which have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.06 SECURITIES REDEEMED IN PART. Upon
surrender of a Security that is redeemed in part, the
Company shall execute and the Trustee shall authenticate for
the Holder (at the Company's expense) a new Security equal
in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE 4
Covenants
---------
SECTION 4.01 PAYMENT OF SECURITIES. The Company shall
promptly pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities
and in this Indenture. Principal and interest shall be
considered paid on the date due if on such date the Trustee
or the Paying Agent holds in accordance with this Indenture
money sufficient to pay all principal and interest then due
and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Securityholders
on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue
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<PAGE> 37
principal at the rate specified therefor in the Securities,
and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY. The
Company will maintain in The Borough of Manhattan, The City
of New York, an office or agency (which may be an office of
the Trustee, Registrar or co-registrar) where Securities may
be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Securities 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 will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the corporate trust
office of the Trustee as one such office or agency of the
Company in accordance with Section 2.03.
SECTION 4.03 SEC REPORTS. The Company shall file with
the Trustee and provide Securityholders, within 15 days
after it files them with the SEC, copies of its annual
report and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act. Notwithstanding that the
Company may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the
<PAGE>
<PAGE> 38
Exchange Act, the Company shall continue to file with the
SEC and provide the Trustee and Securityholders with such
annual reports and such information, documents and other
reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which are
specified in Sections 13 and 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA
Section 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only
and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or
determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
SECTION 4.04 TAXES. The Company shall, and shall
cause each of the Subsidiaries to, pay prior to delinquency
all material taxes, assessments, and governmental levies
except as contested in good faith and by appropriate
proceedings.
SECTION 4.05 LIMITATION ON ADDITIONAL INDEBTEDNESS.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur,
assume, or directly or indirectly guarantee, or in any other
manner become directly or indirectly liable with respect to
or responsible for the payment of any Indebtedness, except
for:
(1) Indebtedness of the Company under the
Securities and this Indenture;
(2) Indebtedness of the Company at any time
outstanding under the Revolving Credit Facility not to
exceed $110 million outstanding at any one time;
(3) Indebtedness of the Company evidenced by the
Convertible Subordinated Debentures in an aggregate
principal amount of not more than $69 million
outstanding at any one time;
(4) Indebtedness of the Company (guaranteed by
the Subsidiaries on the same basis as the Securities)
evidenced by the 9-1/8% Senior Notes in an aggregate
<PAGE>
<PAGE> 39
principal amount not to exceed $100 million;
(5) surety bonds and appeal bonds required in the
ordinary course of business or in connection with the
enforcement of rights or claims of the Company or any
of the Subsidiaries or in connection with judgments
that do not constitute an Event of Default pursuant to
Section 6.01(7);
(6) guarantees of Indebtedness of Affiliates or
Associates of the Company which exist as of the date
hereof and guarantees of Indebtedness that is otherwise
permitted by the terms hereof;
(7) other Indebtedness with a principal amount of
not more than $15 million outstanding at any one time;
(8) Indebtedness of a Subsidiary to the Company,
Indebtedness of the Company to a Subsidiary or
Indebtedness of a Subsidiary to a Subsidiary;
(9) additional Indebtedness of the Company and
the Subsidiaries not outstanding as of the date hereof
if the Consolidated EBITDA Coverage Ratio of the
Company for its four full fiscal quarters immediately
preceding the date such additional Indebtedness is
created, incurred, assumed or guaranteed (the
"Incurrence Date") determined on a pro forma basis
(including a pro forma application of the net proceeds
of such Indebtedness) as if such additional
Indebtedness had been created, incurred, assumed or
guaranteed and any related transactions or acquisitions
had been consummated, at the beginning of such fourth
quarter period, for any Incurrence Date occurring
during the period set forth below, would have been at
least 2.25 to 1.00; and
(10) Indebtedness of the Company and the
Subsidiaries, all of the net proceeds, if any, of which
(after reasonable fees, expenses and costs related to
the incurrence of such Indebtedness) are applied
entirely to repay or to refund outstanding Indebtedness
permitted under clauses (1), (2), (3), (4) and (9)
above and this clause (10) and any extensions or
renewals of outstanding Indebtedness under clauses (2),
<PAGE>
<PAGE> 40
and (9) and this clause (10) ("Refinancing
Indebtedness"); PROVIDED, HOWEVER, that (A) the maximum
principal amount of the Refinancing Indebtedness
permitted under this paragraph (10) shall not exceed
the maximum principal amount outstanding (or, in the
case of clause (2) above, available) and accrued
interest of the Indebtedness to be repaid, refunded or
refinanced plus the amount of reasonable fees, expenses
and costs related to the incurrence of such Refinancing
Indebtedness, (B) the maturity of any Refinancing
Indebtedness of Indebtedness other than Senior Debt
shall not be earlier than the maturity of the
Indebtedness being so extended, renewed, refunded or
refinanced, and (C) with respect to any Refinancing
Indebtedness of Indebtedness other than Senior Debt,
such Refinancing Indebtedness shall rank no more
senior, and shall be at least as subordinated, in right
of payment to the Securities as the Indebtedness being
so extended, renewed, refunded or refinanced.
Notwithstanding anything in the foregoing to the
contrary, the Company will not permit any Subsidiary
to, directly or indirectly, create, incur, issue,
assume or guarantee directly or indirectly any
Indebtedness except for Indebtedness permitted by
clauses (1) (2), (4), (5), (7), and (8), Indebtedness
permitted by paragraph (9) to the extent incurred in
connection with an acquisition and Refinancing
Indebtedness of Indebtedness permitted by any of such
clauses subject to clauses (A) through (C) of the
proviso of this clause (10).
(b) Notwithstanding anything in the provisions of
paragraph (a) above to the contrary, the Company may permit
any Subsidiary to create, incur or assume (i) Indebtedness
incurred to purchase, or to finance the purchase of, fixed
or capital assets including, without limitation, the
deferred purchase price of fixed or capital assets; PROVIDED
that such Indebtedness is secured only as permitted under
Section 4.10 hereof; and (ii) Indebtedness incurred in
connection with Capital Lease Obligations; PROVIDED that
such Indebtedness is secured only as permitted under Section
4.10 hereof.
SECTION 4.06 LIMITATION ON RESTRICTED PAYMENTS. (a)
The Company will not, and will not permit any of the
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<PAGE> 41
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any
distribution on account of the Company's or any of the
Subsidiaries' capital stock or other Equity Interests
(other than dividends or distributions payable in
Equity Interests of the Company or the Subsidiaries and
dividends or distributions payable to the Company or
another Subsidiary);
(ii) purchase, redeem or otherwise acquire or
retire for value any Equity Interests of the Company or
any Subsidiary or any other Affiliate of the Company
(other than any such Equity Interests owned by the
Company or any of the Subsidiaries), except as
permitted in clause (iv) of this paragraph (a) below;
(iii) voluntarily prepay, purchase, redeem or
otherwise acquire or retire for value any Indebtedness
of the Company or any Subsidiary (other than
Indebtedness of the Company or any Subsidiary to the
Company or another Subsidiary) that is subordinated to
the Securities prior to the scheduled maturity
payments, scheduled sinking fund payments or similar
mandatory requirements provided for pursuant to the
terms of such Indebtedness other than as specifically
permitted by the terms hereof or in connection with any
refinancing thereof permitted by the terms hereof; or
(iv) make any Investment in any Affiliate of the
Company other than a Subsidiary or a person which will
become a Subsidiary as a result of such Investment;
(all of the foregoing dividends, distributions, purchases,
redemptions or other acquisitions, retirements, prepayments
or Investments set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), if
at the time of such Restricted Payment:
(1) a Default or Event of Default shall have
occurred and be continuing or shall occur as a
consequence thereof; or
(2) the Company shall not be able to incur
at least $1.00 of additional Indebtedness pursuant
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<PAGE> 42
to clause (9) of the Limitation on Additional
Indebtedness provisions set forth in Section 4.05
hereof; or
(3) such Restricted Payment, together with
the aggregate of all other Restricted Payments
made after the date hereof, exceeds the sum of
(x) 50% of the amount of the Consolidated Net
Income of the Company for the period (taken as one
accounting period) from the beginning of the first
fiscal quarter immediately after the date of this
Indenture to the end of the Company's most
recently ended quarter at the time of such
Restricted Payment (or, if Consolidated Net Income
for such period is negative, 100% of such
accumulated amount) plus (y) 100% of the aggregate
net cash proceeds received by the Company from the
issue or sale after the date of this Indenture of
capital stock of the Company (other than (i) the
Company's Series B Senior Cumulative Convertible
Preferred Stock, par value $1.00 per share (the
"Series B Preferred Stock"), (ii) Redeemable
Capital Stock or Exchangeable Stock and (iii)
capital stock issued or sold to a Subsidiary of
the Company) or any Indebtedness or other security
convertible into or exercisable for any such
capital stock (other than Redeemable Capital Stock
or Exchangeable Stock) that has been so converted
or exercised (the sum of (x) and (y) hereinafter
referred to as the "Earned Amount"); PROVIDED,
HOWEVER, that if the amount of Investments made
pursuant to clause (v) in paragraph (b) below
exceeds $5 million, the Company may not, and may
not permit any Subsidiary to, make any Restricted
Payment (other than (i) dividends on the Company's
Series B Preferred Stock and the Company's Series
C Senior Cumulative Preferred Stock, par value
$1.00 per share (the "Series C Preferred Stock"),
in an aggregate amount not to exceed $2.125
million in any fiscal year and (ii) other
Restricted Payments in the discretion of the
Company in an aggregate amount not to exceed $1
million in any fiscal year) unless the Earned
Amount (less Restricted Payments made to such
date) equals the amount of Investments made
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<PAGE> 43
pursuant to clause (v) in paragraph (b) below in
excess of $5 million. Notwithstanding the
foregoing, the requirement that the Company be
able to incur at least $1.00 of additional
Indebtedness pursuant to clause (9) of Section
4.05 of this Indenture will not apply to the
Company's ability to make Restricted Payments in
the form of dividends on the Series B Preferred
Stock and the Series C Preferred Stock.
(b) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 4.06 shall not
prohibit the following (none of which will, unless otherwise
indicated, be deemed Restricted Payments for purposes of
reducing the amount that would be available for Restricted
Payments under clause (3) of paragraph (a) above):
(i) the payment of cash dividends on the
Company's Series B Preferred Stock and the Company's
Series C Preferred Stock in an aggregate amount not to
exceed $2.125 million in any fiscal year, PROVIDED,
HOWEVER, that such express permission will terminate as
of the end of the fiscal quarter during which the
Earned Amount first equals $10 million;
(ii) the payment of other Restricted Payments in
the discretion of the Company in an aggregate amount
not to exceed $1 million in any fiscal year, PROVIDED,
HOWEVER, that such express permission will terminate as
of the end of the fiscal quarter during which the
Earned Amount first equals $10 million;
(iii) the retirement of any shares of the
Company's capital stock in exchange for, or out of the
net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of, other
shares of the Company's capital stock; PROVIDED that
the retirement of any shares of capital stock out of
the net cash proceeds of the substantially concurrent
sale of other shares of the Company's capital stock
pursuant to this clause (iii) shall reduce the amount
that would otherwise be available for Restricted
Payments under clause (3) of paragraph (a) above;
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<PAGE> 44
(iv) repurchases and redemptions of the
Convertible Subordinated Debentures required pursuant
to or to be applied to the mandatory redemption
provisions of the Convertible Subordinated Debentures
as in effect on the date of this Indenture; PROVIDED
that any such redemption or repurchase is consummated
during the 12-month period immediately preceding the
date on which the next such redemption or repurchase
becomes mandatory; or
(v) Investments in Affiliates in an aggregate
amount up to $20 million.
SECTION 4.07 LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING COMPANY SUBSIDIARIES; LIMITATION ON
PREFERRED STOCK OF SUBSIDIARIES. The Company will not, and
will not permit any of the Subsidiaries to, directly or
indirectly, create or otherwise cause to exist or become
effective any consensual encumbrance or restriction of any
kind on the ability of any Subsidiary to (i) pay dividends
or make any other distribution on its capital stock or any
other interest or participation in, or measured by, its
profits, owned by the Company or a Subsidiary of the Company
or pay any Indebtedness owed to the Company or any
Subsidiary of the Company, (ii) make loans or advances to
the Company or any Subsidiary of the Company, or
(iii) transfer any of its property or assets to the Company
or any Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (a) applicable
law, (b) this Indenture and the Securities, (c) provisions
restricting the assignability of contracts in the ordinary
course of business, (d) customary lease provisions
restricting subletting or assignment of any leasehold
interest, (e) any instrument governing Indebtedness of a
person acquired by the Company or any Subsidiary at the time
of such acquisition (but not in connection with such
acquisition), (f) any Indebtedness or other contractual
obligation of the Company or any Subsidiary existing on the
date hereof, or (g) with respect to item (e) and item (f),
any amendment, modification, renewal, extension,
replacement, refinancing or refunding thereof; PROVIDED,
HOWEVER, that the restrictions contained in any such
amendment, modification, renewal, extension, replacement,
refinancing or refunding are not less favorable in any
material respect to the holders of the Securities.
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<PAGE> 45
The Company shall not permit any Subsidiary to issue,
directly or indirectly, any Preferred Stock, other than to
the Company or any other Subsidiary.
SECTION 4.08 LIMITATION ON SALES OF ASSETS AND
SUBSIDIARY STOCK. (a) The Company will not and will not
permit any of the Subsidiaries to sell, lease, convey or
otherwise dispose of in any transaction or related series of
transactions any of its assets or property (including the
stock of any Subsidiary) with a value of $3 million or
greater, including by way of a sale-and-leaseback (an "Asset
Sale") other than to the Company or a Subsidiary of the
Company, except that:
(1) the Company and the Subsidiaries may sell
inventory and assets or property in the ordinary course
of business;
(2) the Company and the Subsidiaries may sell
property or assets at not less than the fair market
value thereof provided that:
(i) in cases other than an Asset Sale of
discontinued operations of the Company classified
as such on the date of this Indenture, at least
75% of the consideration therefor received by the
Company or such Subsidiary is in the form of cash;
and
(ii) the Company shall apply 100% of the Net
Proceeds from an Asset Sale to an offer to redeem
the Securities, pursuant to the provisions hereof,
at a purchase price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest,
if any, or to repay Senior Debt or, if no Senior
Debt is at the time outstanding, other
Indebtedness that is not subordinate in right of
payment to the Securities; and
(3) the Company or the Subsidiaries may make
dispositions of assets in order to comply with
applicable law.
(b) The Company shall have no obligation to make an
offer to redeem the Securities or to repay Indebtedness
<PAGE>
<PAGE> 46
pursuant to the foregoing clause (2)(ii) if, and to the
extent that, the Company has a bona fide intent to reinvest
the Net Proceeds from the Asset Sale in another asset or
business in the same or similar line of business as the
Company or the Subsidiaries existing on the date hereof and
controlled by the Company or the Subsidiaries, and such
intent to reinvest is evidenced by an Officers' Certificate
of the Company, delivered to the Trustee, within 30 days of
the occurrence of such Asset Sale and the Net Proceeds
thereof are so reinvested within 270 days of the receipt
thereof; PROVIDED, HOWEVER, that any such asset or business
acquired with the Net Proceeds shall not be encumbered by
Liens securing an amount of Indebtedness that exceeds the
amount of Indebtedness secured by Liens on the asset or
property that is the subject of the Asset Sale.
Notwithstanding anything contained in this Section 4.08 to
the contrary, the Company and the Subsidiaries may make any
Investment in any Affiliate of the Company, PROVIDED that
such Investment complies with Section 4.06 hereof; and
PROVIDED FURTHER that such Investment is first applied to
reduce amounts available for Investment pursuant to clause
(v) of paragraph (b) of Section 4.06 hereof; and PROVIDED
FURTHER that any cash or Cash Equivalents received by the
Company or any Subsidiary at the time an Investment in any
Affiliate is made in exchange for such Investment shall be
applied in the manner specified in this Section 4.08.
(c) In the event of an Asset Sale that requires the
purchase of Securities pursuant to this Section 4.08, the
Company will be required to purchase Securities tendered
pursuant to an offer by the Company for the Securities (the
"Offer") at the purchase price set forth in Section 4.08(a)
in accordance with the procedures (including prorationing in
the event of oversubscription) set forth in Section 4.08(d).
(d) (1) Promptly, and in any event within 90 days
after the occurrence of an Asset Sale requiring the Company
to offer to purchase Securities pursuant to the Offer, the
Company shall be obligated to deliver to the Trustee and
send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Securities
purchased by the Company either in whole or in part (subject
to prorationing as hereinafter described in the event the
Offer is oversubscribed) in integral multiples of $1,000 of
principal amount, at the applicable purchase
<PAGE>
<PAGE> 47
price. The notice shall specify a purchase date not less
than 30 days nor more than 60 days after the date of such
notice (the "Purchase Date") and shall contain information
concerning the business of the Company which the Company in
good faith believes will enable such Holders to make an
informed decision (which at a minimum will include (i) the
most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company,
the most recent subsequently filed Quarterly Report on Form
10-Q and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report, other than Current
Reports describing Asset Sales otherwise described in the
offering materials (or corresponding successor reports),
(ii) a description of material developments in the Company's
business subsequent to the date of the latest of such
Reports, and (iii) if material, appropriate pro forma
financial information) and all instructions and materials
necessary to tender Securities pursuant to the Offer,
together with the information contained in clause (3) below.
(2) Not later than the date upon which written
notice of an Offer is delivered to the Trustee as provided
in clause (1) above, the Company shall deliver to the
Trustee an Officers' Certificate as to (i) the amount of the
Offer (the "Offer Amount"), (ii) the allocation of the Net
Proceeds from the Asset Sales pursuant to which such offer
is being made and (iii) the compliance of such allocation
with the provisions of Section 4.08(a). On such date, the
Company shall irrevocably deposit with the Trustee or with
the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust) in immediately
available funds an amount equal to the Offer Amount to be
held for payment in accordance with the provisions of this
Section. The amount so deposited, at the option of, and
pursuant to the specific written direction of, the Company,
may be invested in Cash Equivalents the maturity date of
which is not later than the Purchase Date. The Company
shall be entitled to any interest or dividends accrued,
earned or paid on such Cash Equivalents. Upon the
expiration of the period for which the Offer remains open
(the "Offer Period"), the Company shall deliver to the
Trustee the Securities or portions thereof which have been
properly tendered to and are to be accepted by the Company.
The Trustee shall, on the Purchase Date, mail or deliver
payment to each tendering Holder in the amount of the
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<PAGE> 48
purchase price. In the event that the aggregate purchase
price of the Securities delivered by the Company to the
Trustee is less than the Offer Amount, the Trustee shall
deliver the excess to the Company immediately after the
expiration of the Offer Period.
(3) Holders electing to have a Security purchased
will be required to surrender the Security, with an
appropriate form duly completed, to the Company at the
address specified in the notice at least 10 Business Days
prior to the Purchase Date. Holders will be entitled to
withdraw their election if the Company receives not later
than three Business Days prior to the Purchase Date, a
facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that
such Holder is withdrawing his election to have such
Security purchased. If at the expiration of the Offer
Period the purchase price of Securities surrendered by
Holders exceeds the Offer Amount, the Company shall select
the Securities to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company
so that only Securities in denominations of $1,000, or
integral multiples thereof, shall be purchased). Holders
whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
(4) At the time the Company delivers Securities
to the Trustee which are to be accepted for purchase, the
Company will also deliver an Officers' Certificate stating
that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this
Section. A Security shall be deemed to have been accepted
for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the
surrendering Holder.
(e) The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any
securities laws or regulations conflict with provisions of
this Section, the Company shall comply with the applicable
<PAGE>
<PAGE> 49
securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue
thereof.
SECTION 4.09 LIMITATION ON TRANSACTIONS WITH
AFFILIATES. The Company shall not, and shall not permit any
of the Subsidiaries to, directly or indirectly, enter into
or suffer to exist any transaction or series of related
transactions (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of
any service or the entering into of any agreement, contract,
understanding, loan or guarantee) with or for the benefit of
any Affiliate of the Company that is not a direct or
indirect Wholly Owned Subsidiary of the Company except for
(i) transactions the terms of which are at least as
favorable as the terms that could be obtained by the Company
or such Subsidiary, as the case may be, in a comparable
transaction made on an arm's length basis between
unaffiliated parties; PROVIDED that with respect to any such
transaction or series of transactions involving aggregate
payments in excess of $3 million, the Company delivers an
Officers' Certificate to the Trustee certifying that such
transaction or transactions (x) complies with this clause
(i) and (y) has received the approval of a majority of the
directors of the Board of Directors of the Company that are
not officers of the Company and otherwise have no interest
in the transaction or transactions being approved (the
"Disinterested Directors"), (ii) transactions the terms of
which are not at least as favorable as the terms that could
be obtained by the Company or such Subsidiary, as the case
may be, in a comparable transaction made on an arm's length
basis between unaffiliated parties; PROVIDED that with
respect to any such transaction or series of transactions
involving aggregate payments in excess of $1 million, the
Company delivers an Officers' Certificate to the Trustee
certifying that such transaction or transactions has
received the approval of a majority of the Disinterested
Directors, (iii) transactions permitted by the provisions of
Section 4.06(b)(v) hereof and (iv) payments to employees or
consultants for services rendered in the ordinary course of
business.
SECTION 4.10. LIMITATION ON LIENS. The Company will
not, and will not permit any of the Subsidiaries to, create,
incur or assume any Lien of any kind upon any of its
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<PAGE> 50
property or assets, now owned or hereafter acquired, or any
income or profits therefrom or assign or convey any right to
receive income therefrom, without in any case effectively
providing, concurrently with the creation, incurrence or
assumption of such Lien, that (x) in the case of any Lien
securing Indebtedness that is subordinate in right of
payment to the Securities, the Securities outstanding shall
be secured by a Lien on such property, assets or proceeds
that is senior in priority to, and for the same period of
time as, such Lien and (y) in the case of any other Lien,
the Securities outstanding shall be secured equally and
ratably with (or prior to) and for the same period of time
as the Indebtedness secured by such Lien; PROVIDED, HOWEVER,
that the foregoing restrictions shall not apply to:
(1) any Lien existing on the date hereof securing
Indebtedness and any Lien securing Senior Debt;
(2) Liens on any property or asset acquired by
the Company or a Subsidiary which are in existence on
the date of acquisition of such property or are
incurred in connection with such acquisition, including
purchase money Liens and, in the case of a person which
becomes a Subsidiary, Liens on its property or capital
stock in existence on the date such person becomes a
Subsidiary, PROVIDED that such Liens do not extend to,
cover or include any other property or assets of the
Company or the Subsidiaries other than the property or
asset acquired;
(3) Liens on any property or asset acquired by
the Company or a Subsidiary in favor of the seller of
such property or asset or construction mortgages on
property created within six months after the
acquisition, construction or improvement of such
property by the Company or a Subsidiary to secure the
purchase price or other obligations of the Company to
the sellers of such property or asset or the
construction cost or improvement cost of only such
property in an amount up to the total cost of such
property, construction or improvement; PROVIDED,
HOWEVER, that in each case, such Lien does not extend
to or cover or include any other property or assets of
the Company or its Subsidiaries;
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<PAGE> 51
(4) Liens to secure Indebtedness of a Subsidiary
to the Company or to another Subsidiary;
(5) Permitted Liens;
(6) Liens other than those set forth above
provided that the aggregate amount of Indebtedness
secured by such other Liens shall not exceed $2 million
at any one time; and
(7) any extension, renewal or replacement, in
whole or in part, of any Lien described in the
foregoing paragraphs (1) through (6); PROVIDED that any
Lien so extended, renewed or replaced shall be no more
restrictive in any material respect or extend to or
cover or include any other property or assets of the
Company and the Subsidiaries.
SECTION 4.11 LIMITATION ON SENIOR SUBORDINATED DEBT.
The Company will not (i) incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness
that is subordinated or junior in right of payment to any
Senior Debt of the Company pursuant to a written
subordination agreement or by the express terms of such
Indebtedness and senior in any respect in right of payment
to the Securities; or (ii) permit any Guarantor to incur,
create, issue, assume, guarantee or otherwise become liable
for any Indebtedness that is subordinated or junior in right
of payment to its Senior Debt pursuant to a written
subordination agreement or by the express terms of such
Indebtedness and senior in right of payment to its
Guarantee.
SECTION 4.12 LIMITATION ON SUBSIDIARY GUARANTEES. (a)
Notwithstanding anything to the contrary contained herein,
for as long as any Guarantees are required to remain in
effect pursuant to the terms of this Indenture, the Company
will not permit any Subsidiary to guarantee any Indebtedness
of the Company or any other Subsidiary other than Senior
Debt without in each case causing such Subsidiary to execute
and deliver the instruments required under Section 10.05(b)
evidencing, concurrently with the creation of such
guarantee, that (x) in the case of any Indebtedness that is
subordinate in right of payment to the Securities, the
Securities outstanding shall be guaranteed
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<PAGE> 52
by such Subsidiary prior to such Indebtedness and (y) in the
case of any other Indebtedness, the Company shall cause the
Securities to be equally and ratably guaranteed by such
Subsidiary, in each case, only to the extent the Securities
have not already been guaranteed in a manner reasonably
comparable to that specified in clauses (x) or (y), as the
case may be.
(b) The Company hereby covenants that no Subsidiary
shall become obligated to guarantee any Indebtedness of the
Company or any other Subsidiary for a
120-day period immediately following the termination of such
Subsidiary's Guarantee obligation hereunder.
SECTION 4.13 CORPORATE EXISTENCE. Subject to Article
5 hereof, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect
(a) its corporate existence in accordance with its
organizational documents (as the same may be amended from
time to time) and (b) its rights (charter and statutory),
licenses that are material to the businesses of the Company
or any Significant Subsidiary and franchises. "Significant
Subsidiary" means each Subsidiary which is a "significant
subsidiary" as defined in Rule 1-02(v) of Regulation S-X
under the Exchange Act.
SECTION 4.14 LIMITATION ON LINES OF BUSINESS. The
Company shall not, and shall not permit any of its
Subsidiaries to, so long as any of the Securities are
outstanding, engage, directly or indirectly, in any business
other than those that are the same as or similar to lines of
the Company's and the Subsidiaries' businesses existing on
the date of this Indenture (including aviation and aviation-
related businesses).
SECTION 4.15 CHANGE OF CONTROL. (a) In the event
that there is a Change of Control (the date of such Change
of Control being the "Trigger Date"), the Company shall
notify the Trustee in writing of such occurrence and shall
promptly make an offer to purchase (the "Change of Control
Offer"), on the Change of Control Payment Date (as
hereinafter defined), all Securities then outstanding at a
purchase price equal to 101% of the then outstanding
principal amount thereof plus accrued and unpaid interest,
if any, to and including the Change of Control Payment Date.
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<PAGE> 53
The "Change of Control Payment Date" shall be the last day
of the fiscal quarter of the Company next following the
Trigger Date or (i) if such day is not a Business Day, the
next succeeding Business Day, or (ii) if such day would
result in the Change of Control Offer not remaining open for
a sufficient period of time to comply with applicable
securities laws or rules of any securities exchange on which
the Securities are then listed, the next succeeding Business
Day on which consummation of such purchase may take place
without violating such securities laws or rules.
(b) At least five Business Days prior to the Company's
mailing of a notice of a Change of Control Offer, the
Company shall notify the Trustee of the Company's obligation
to offer to repurchase all of the Securities. Prior to the
Change of Control Payment Date, the Company covenants to
(i) repay in full all Indebtedness Obligations under the
Revolving Credit Facility or (ii) obtain any requisite
consents under the Revolving Credit Facility to permit the
repurchase of the Securities contemplated by this
Section 4.15. Notice of a Change of Control Offer shall be
mailed by the Company not less than 20 days before the
Change of Control Payment Date (or such other period of time
as is necessary for the Change of Control Offer to remain
open for a sufficient period of time to comply with
applicable securities laws or rules of any securities
exchange on which the Securities are then listed) to the
Holders of the Securities at their last registered addresses
with a copy to the Trustee and the Paying Agent. The Change
of Control Offer shall remain open from the time of mailing
until the Change of Control Payment Date. The notice shall
contain all instructions and materials necessary to enable
such Holders to tender Securities pursuant to the Change of
Control Offer. The notice, which shall govern the terms of
the Change of Control Offer, shall state:
(1) that the Change of Control Offer is being
made pursuant to this Section 4.15, that Securities may
be surrendered in whole or in part (in denominations of
$1,000 and integral multiples thereof), and that all
Securities will be accepted for payment;
(2) the purchase price and the Change of Control
Payment Date;
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<PAGE> 54
(3) that any Securities not tendered will
continue to accrue interest;
(4) that any Securities accepted for payment
pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment
Date;
(5) that Holders electing to have Securities
purchased pursuant to a Change of Control Offer will be
required to surrender their Securities, with the form
entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Company prior
to the close of business on the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw
their election if the Company receives, not later than
the close of business on the Business Day three
Business Days preceding the Change of Control Payment
Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of
Securities the Holder delivered for purchase and a
statement that such Holder is withdrawing his election
to have such Securities purchased;
(7) the Holders whose Securities are purchased
only in part will be issued Securities representing the
unpurchased portion of the Securities surrendered;
(8) the instructions that Holders must follow in
order to tender their Securities; and
(9) the circumstances and relevant facts
regarding such Change of Control (including but not
limited to information with respect to pro forma
historical and projected financial information after
giving effect to such Change of Control, information
regarding the persons acquiring control and such
person's business plans going forward).
On the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent money sufficient to pay
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<PAGE> 55
the purchase price of all Securities or portions thereof so
tendered, and (iii) deliver to the Trustee Securities so
accepted together with an Officers' Certificate stating the
Securities or portions thereof tendered to the Company. The
Paying Agent shall promptly mail to the Holder of Securities
so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail
to such Holders a new Security equal in principal amount to
any unpurchased portion of the Security surrendered.
SECTION 4.16. COMPLIANCE CERTIFICATE. (a) The
Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate
complying with TIA Section 314(a)(4) 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, and further
stating, as to each such Officer signing such certificate,
that to the best of his knowledge each 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
hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default
of which he may have knowledge and what action each is
taking or proposes to take with respect thereto) and that to
the best of his knowledge no event has occurred and remains
in existence by reason of which payments on account of the
principal of or interest, if any, on the Securities are
prohibited or if such event has occurred, a description of
the event and what action each is taking or proposes to take
with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified
Public Accountants, the year-end financial statements
delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's
independent public accountants (who shall be a firm of
established national reputation reasonably satisfactory to
the Trustee) that in making the examination necessary for
certification of such financial statements nothing has come
to their attention which would lead them to believe that the
Company has violated any provisions of Sections 4.01 and
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4.04 through 4.15 hereof or of Article 5 of this Indenture
or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood
that such accountants shall not be liable directly or
indirectly to any person for any failure to obtain knowledge
of any such violation.
(c) The Company will, so long as any of the Securities
are outstanding, deliver to the Trustee, forthwith upon any
Officer becoming aware of (i) any Default or Event of
Default or (ii) any event of default under any other
instrument governing Indebtedness referred to in Section
6.01(6), an Officers' Certificate specifying such Default,
Event of Default or default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.17 FURTHER INSTRUMENTS AND ACTS. Upon
request of the Trustee, the Company will execute and deliver
such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively
the purpose of this Indenture.
ARTICLE 5
Successor Company
-----------------
SECTION 5.01 WHEN THE COMPANY OR ANY SUBSIDIARY MAY
MERGE, etc. The Company will not and will not permit any
Subsidiary to consolidate or merge with or into (whether or
not the Company or such Subsidiary 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:
(1) either the Company or such Subsidiary or
another Subsidiary is the surviving person or the
entity or the person (if other than the Company or such
Subsidiary or another Subsidiary) formed by or
surviving any such consolidation or merger 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;
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<PAGE> 57
(2) the person (if other than the Company or such
Subsidiary or another Subsidiary) formed by or
surviving any such consolidation or merger or the
person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made
assumes all of the obligations of the Company or such
Subsidiary, as the case may be, pursuant to a
supplemental indenture in a form reasonably
satisfactory to the Trustee, under the Securities and
this Indenture;
(3) immediately after such transaction no Default
or Event of Default exists; and
(4) the Company (or, with respect to such a
transaction involving the Company in which the Company
does not survive, the surviving person) (A) shall have
Consolidated Net Worth (immediately after the
transaction but prior to any purchase accounting
adjustments resulting from the transaction) equal to or
greater than the Consolidated Net Worth of the Company
immediately preceding the transaction and (B) except
with respect to transactions between Subsidiaries,
shall be permitted by virtue of its Consolidated EBITDA
Coverage Ratio for the immediately preceding four
fiscal quarters to incur at least $1.00 of additional
Indebtedness pursuant to paragraph (9) of Section
4.05(a) hereof; PROVIDED, HOWEVER, that for purposes of
this provision, the Consolidated EBITDA Coverage Ratio
will be calculated after giving pro forma effect to
such consolidation or merger, or such sale, assignment,
transfer, lease, conveyance or other disposition, as if
the same had occurred at the beginning of the
applicable four-quarter period.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture. The
Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel.
Notwithstanding anything contained in this Section 5.01
to the contrary, any transaction involving the disposition
of the assets or property of any Subsidiary
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which complies with the provisions of Section 4.08 hereof
shall not be prohibited by this Section 5.01.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED. Upon
any consolidation or merger, or any sale, lease, conveyance
or other disposition of all or substantially all of the
assets of the Company or any Subsidiary, in accordance with
Section 5.01, the successor corporation formed by such
consolidation or into or with which the Company or any
Subsidiary is merged or to which such sale, lease,
conveyance or other disposition is made shall succeed to,
and be substituted for, and may exercise every right and
power of, the Company or such Subsidiary, as the case may
be, under this Indenture and the Securities with the same
effect as if such successor person has been named as the
Company or such Subsidiary herein; PROVIDED, HOWEVER, that
the predecessor Company in the case of a sale, lease,
conveyance or other disposition of the Company shall not be
released or discharged from the obligation to pay the
principal of, premium, if any, or interest on the
Securities.
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01 EVENTS OF DEFAULT. An "Event of Default"
occurs if:
(1) a default in the payment of interest on any
Security when the same becomes due and payable occurs
and the Default continues for a period of 30 days;
(2) a default in the payment of the principal of
any Security when the same becomes due and payable at
maturity, upon redemption or otherwise occurs;
(3) the Company or any Guarantor fails to comply
with any of its other agreements or covenants in, or
provisions of, the Securities or this Indenture (other
than a failure in the performance of an agreement,
covenant or provision which is specifically dealt with
elsewhere in this section) and the Default continues
for the period and after the notice specified below;
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(4) the Company fails to comply with the
provisions of Section 5.01 hereof;
(5) the Company fails to comply with the
provisions of Section 4.15 hereof and the Default
continues for the period and after the notice specified
below;
(6) a default under (after giving effect to any
applicable grace periods or any extension of any
maturity date), or the acceleration of the maturity of
any other Indebtedness, under any instrument governing
any other Indebtedness of the Company or any Sub-
sidiary, if the principal amount of such Indebtedness,
together with the principal amount of any other such
Indebtedness with respect to which a default (after the
expiration of any applicable grace period or any
extension of the maturity date) has occurred, or the
maturity of which has been so accelerated, exceeds $3
million in the aggregate;
(7) a final judgment or final judgments for the
payment of money are entered by a court or courts of
competent jurisdiction against the Company or any
Subsidiary and such judgment or judgments remain
undischarged for a period (during which execution shall
not be effectively stayed) of 60 days, provided that
the aggregate of all such judgments exceeds $3 million;
(8) any Guarantee ceases to be in full force and
effect (other than in accordance with Section 10.06) or
a Guarantor or any person acting on behalf of a
Guarantor shall deny or disaffirm such Guarantor's
obligations under a Guarantee;
(9) the Company or any Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for
relief against it in an involuntary
case,
(iii) consents to the appointment of a
Custodian of it or for all or
substantially all of its property,
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(iv) makes a general assignment for the
benefit of its creditors, or
(v) admits in writing its inability to
pay debts as the same become due; or
(10) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
of its Subsidiaries in an
involuntary case,
(ii) appoints a Custodian of the Company or
any of its Subsidiaries or for all
or substantially all of their
property, or
(iii) orders the liquidation of the Company or
any of its Subsidiaries,
and the order or decree remains unstayed and in effect
for 60 days;
The term "Bankruptcy Law" means title 11, U.S. Code or
any similar Federal or state law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Notwithstanding the foregoing, the voluntary
liquidation, dissolution or bankruptcy of any Subsidiary
listed in Schedule II hereto shall not constitute an Event
of Default hereunder so long as the aggregate total assets
of all such Subsidiaries so liquidated or dissolved or as to
which a voluntary bankruptcy proceeding has been commenced
(in each case determined as of the time of such liquidation,
dissolution or bankruptcy) shall not exceed $10,000,000.
A Default under clause (3) is not an Event of Default
until the Trustee notifies the Company, or the Holders of at
least 25% in principal amount of the then outstanding
Securities notify the Company and the Trustee, of the
Default and the Company does not cure the Default within 30
days after receipt of the notice. A Default under clause
(5) is not an Event of Default until the Trustee notifies
the Company, or the Holders of at least 25% in principal
amount of the then outstanding Securities notify the Company
and the Trustee of the Default and the Company does not cure
the Default within 10 days after receipt of
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the notice. Any such notice must specify the Default,
demand that it be remedied and state that the notice is a
"Notice of Default."
SECTION 6.02 ACCELERATION. If an Event of Default
(other than an Event of Default specified in clauses (9) and
(10) of Section 6.01) occurs and is continuing, the Trustee
by notice to the Company or the Holders of at least 25% in
principal amount of the then outstanding Securities by
written notice to the Company and the Trustee may declare
the unpaid principal of and any accrued interest on all the
Securities to be due and payable. Upon such declaration the
principal and interest shall be due and payable immediately.
If an Event of Default specified in clause (9) or (10) of
Section 6.01 occurs, such an amount shall IPSO FACTO become
and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder. The
Holders of a majority in principal amount of the then
outstanding Securities by written notice to the Trustee may
rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of
principal or interest that has become due solely because of
the acceleration) have been cured or waived.
SECTION 6.03 OTHER REMEDIES. If an Event of Default
occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal or
interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee
or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS. Holders of a
majority in principal amount of the then outstanding
Securities by notice to the Trustee may waive an existing
Default or Event of Default and its consequences except (i)
a Default or Event of Default in the payment of the
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principal of or interest on any Security held by a
non-consenting Holder or (ii) a Default or Event of Default
in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected. Upon
any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY. The Holders of a
majority in principal amount of the then outstanding
Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other
Securityholders, or that may involve the Trustee in personal
liability.
SECTION 6.06 LIMITATION ON SUITS. A Securityholder
may pursue a remedy with respect to this Indenture or the
Securities only if:
(1) the Holder gives to the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 25% in principal
amount of the then outstanding Securities make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if
requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability
or expense;
(4) 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
(5) during such 60 day period the Holders of a
majority in principal amount of the then outstanding
Securities do not give the Trustee a direction
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consistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference
or priority over another Securityholder.
SECTION 6.07 RIGHTS IF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of
principal and interest on the Security, on or after the
respective due dates expressed in the Security, 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 the Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE. If an Event
of Default specified in Section 6.01(1) or (2) 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 and interest
remaining unpaid on the Securities and interest on overdue
principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. The
Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative
to the Company (or any other obligor upon the Securities),
its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and
any custodian in any such judicial proceeding is hereby
authorized by each Securityholder 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
Securityholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and
advances of the
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Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof. To the extent that
the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding, shall
be denied for any reason, payment of the same shall be
secured by a prior claim on, and shall be paid out of, any
and all distributions, dividends, money, securities and
other properties which the Holders of the Securities 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 Securityholder any plan
of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of
the claim of any Securityholder in any such proceeding.
SECTION 6.10. PRIORITIES. If the Trustee collects any
money pursuant to this Article, it shall, pay out the money
in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07, 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 Securityholders for amounts due and unpaid
on the Securities for principal and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal and
interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for
any payment to Securityholders.
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<PAGE>
<PAGE> 65
taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against
any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the
party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.07, or
a suit by Holders of more than 10% in principal amount of
the then outstanding Securities.
SECTION 6.12 WAIVER OF STAY OR EXTENSION LAWS. The
Company (to the extent it may lawfully do so) shall not at
any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not 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 had been enacted.
ARTICLE 7
Trustee
-------
SECTION 7.01 DUTIES OF TRUSTEE. (a) If an Event of
Default has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
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and
(2) 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, in the case
of any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Trustee, 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 liability for
its own negligent action, its own negligent failure to act
or its own wilful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant
to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and
(c) of this Section.
(e) 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.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise
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incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions
of this Section and to the provisions of the TIA.
SECTION 7.02 RIGHTS OF TRUSTEE. (a) The Trustee may
rely on 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. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through 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 which it believes to be
authorized or within its rights or powers; PROVIDED,
HOWEVER, that the Trustee's conduct does not constitute
wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel of its
selection, and the advice or opinion of counsel with respect
to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and
protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The
Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal
with the Company or its affiliates with the same rights it
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would have if it were not Trustee. Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same
with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.04 TRUSTEE'S DISCLAIMER. The Trustee shall
not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be
responsible for any statement of the Company in the
Indenture or in any document issued in connection with the
sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05 NOTIVE OF DEFAULTS. If a Default occurs
and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder and to the Company
notice of the Default within 90 days after it occurs.
Except in the case of a Default in payment of principal of
or interest on any Security (including payments pursuant to
the mandatory redemption provisions of such Security), the
Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of
Securityholders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS. As
promptly as practicable after each May 15 beginning with the
May 15 following the date of this Indenture, and in any
event prior to July 15 in each year, the Trustee shall mail
to each Securityholder a brief report dated as of May 15
that complies with TIA Section 313(a), if required by such
Section 313(a); PROVIDED that the first such report shall be
mailed prior to July 15, 1996. The Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange (if any) on which the Securities are listed. The
Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY. The
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<PAGE> 69
Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall agree in
writing for its services. 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 upon
request for all reasonable out-of-pocket expenses incurred
or made by it, including costs of collection, in addition to
the compensation for its services. Such expenses shall
include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Company shall indemnify each
of the Trustee or any predecessor Trustee against any and
all loss, liability or reasonable expense (including
attorneys' fees and expenses) incurred by it in connection
with the acceptance or administration of this trust and the
performance of its duties hereunder. The Trustee shall
notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay
the fees and expenses of such counsel. The Company need not
reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the
Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a claim prior to the
Securities on all money or property held or collected by the
Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
The Company's payment obligations pursuant to this
Section shall survive the discharge of this Indenture. When
the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(9) or (10) with respect to
the Company, the expenses are intended to constitute
expenses of administration under the Bankruptcy Law.
SECTION 7.08 REPLACEMENT OF TRUSTEE. The Trustee may
resign at any time by so notifying the Company. The Holders
of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the
Trustee if:
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(1) the Trustee fails to comply with Section
7.10;
(2) the Trustee is adjudged bankrupt or
insolvent;
(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee otherwise 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 Trustee
in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the
Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 7.07.
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 a majority
in principal amount of the Securities may petition any court
of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant
to this Section, the Company's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
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SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER. If the
Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust
business or assets to, another corporation or banking
association, the resulting, surviving or transferee
corporation without any further act shall be the successor
Trustee.
In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver
such Securities so authenticated; and in case at that time
any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The
Trustee shall at all times satisfy the requirements of TIA
Section 310(a). The Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b); PROVIDED, HOWEVER,
that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which
other securities or certificates of interest or
participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth
in TIA Section 310(b)(1) are met.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated.
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ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01 DISCHARGE OF LIABILITY ON SECURITIES;
DEFEASANCE (a) When (i) the Company delivers to the
Trustee all outstanding Securities (other than Securities
replaced pursuant to Section 2.07) for cancellation or
(ii) all outstanding Securities have become due and payable
and the Company irrevocably deposits with the Trustee funds
sufficient to pay at maturity all outstanding Securities,
including interest thereon (other than Securities replaced
pursuant to Section 2.07), and if in either case the Company
pays all other sums payable hereunder by the Company, then
this Indenture shall, subject to Sections 8.01(c) and 8.06,
cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on
demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and
expense of the Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the
Company at any time may terminate (i) all its obligations
under the Securities and this Indenture ("legal defeasance
option") or (ii) its obligations under Sections 4.03, 4.05
through 4.15 and the operation of Section 6.01(3) (with
respect to Sections 4.03 and 4.05 through 4.13 only),
6.01(5) and Articles 11 and 12 ("covenant defeasance
option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance option,
payment of the Securities may not be accelerated because of
an Event of Default. If the Company exercises its covenant
defeasance option, payment of the Securities may not be
accelerated because of an Event of Default by the Company
specified in 6.01(3) (insofar as it relates to compliance
with Sections 4.03 and 4.05 through 4.13 only) or 6.01(5).
Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall
acknowledge in writing the discharge of those obligations
that the Company terminates.
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(c) Notwithstanding clauses (a) and (b) above, the
Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until
the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02 CONDITIONS TO DEFEASANCE. The Company
may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust
with the Trustee money or U.S. Government Obligations
for the payment of principal, premium (if any) and
interest on the Securities to maturity or redemption,
as the case may be;
(2) the Company delivers to the Trustee a
certificate from a nationally recognized firm of
independent accountants expressing their opinion that
the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment
will provide cash at such times and in such amounts
(but, in the case of the legal defeasance option only,
not more than such amounts) as will be sufficient to
pay principal, premium (if any) and interest when due
on all the Securities to maturity or redemption, as the
case may be;
(3) 123 days pass after the deposit is made and
during the 123-day period no Default specified in
Section 6.01(9) or (10) with respect to the Company
occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on
the date of such deposit and after giving effect
thereto;
(5) the deposit does not constitute a default
under any other agreement binding on the Company;
(6) the Company delivers to the Trustee an
Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is
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qualified as, a regulated investment company under the
Investment Company Act of 1940;
(7) in the case of the legal defeasance option,
the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since July
1, 1993 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 Securityholders will not recognize
income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same
manner and at the same times as would have been the
case if such defeasance had not occurred;
(8) in the case of the covenant defeasance
option, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss
for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
and discharge of the Securities as contemplated by this
Article 8 have been complied with.
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption
of Securities at a future date in accordance with Article 3.
SECTION 8.03 APPLICATION OF TRUST MONEY. The Trustee
shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall
apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with
this Indenture to the payment of principal of and interest
on the Securities.
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SECTION 8.04 REPAYMENT TO COMPANY. The Trustee and
the Paying Agent shall promptly turn over to the Company
upon written request any excess money or securities held by
them at any time.
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of
principal or interest that remains unclaimed for two years,
and, thereafter, Securityholders entitled to the money must
look to the Company for payment as general creditors.
SECTION 8.05 INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government
Obligations.
SECTION 8.06 REINSTATEMENT. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article 8 by reason of
any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such
time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance
with this Article 8; PROVIDED, HOWEVER, that, if the Company
has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE 9
Amendments
----------
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The
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Company, the Guarantors and the Trustee may amend this
Indenture or the Securities without notice to or consent of
any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
PROVIDED, HOWEVER, that the uncertificated Securities
are issued in registered form for purposes of Section
163(f) of the Internal Revenue Code of 1986, as
amended, or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the
Internal Revenue Code of 1986, as amended;
(4) to add guarantees with respect to the
Securities;
(5) to add to the covenants of the Company for
the benefit of the Holders or to surrender any right or
power herein conferred upon the Company;
(6) to reflect the release of any Guarantor from
its Guarantee, or the addition of any Subsidiary of the
Company as a Guarantor, in the manner provided by this
Indenture;
(7) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the
TIA; or
(8) to make any change that does not adversely
affect the rights of any Securityholder.
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a
notice briefly describing such amendment. The failure to
give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an
amendment under this Section.
SECTION 9.02 WITH CONSENT OF HOLDERS. The
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Company, the Guarantors and the Trustee may amend this
Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders
of at least a majority in principal amount of the
Securities. However, without the consent of each
Securityholder affected, an amendment may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment;
(2) reduce the rate of or extend the time for
payment of interest on any Security;
(3) reduce the principal of or extend the Stated
Maturity of any Security;
(4) reduce the premium payable upon the
redemption of any Security or change the time at which
any Security may be redeemed in accordance with Article
3;
(5) make any Security payable at a place or in a
currency other than that stated in the Security;
(6) make any change in Section 6.04 or 6.07 or
the second sentence of this Section;
(7) make any change in Section 4.15 in a manner
adversely affecting any Holder; or
(8) modify any subordination provisions of
Article 11 or Article 12 of this Indenture in a manner
adversely affecting any Holder.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of
any proposed amendment, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a
notice briefly describing such amendment. The failure to
give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an
amendment under this Section.
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SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS AND
WAIVERS. A consent to an amendment or a waiver by a Holder
of a Security shall bind the Holder and every subsequent
Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security,
even if notation of the consent or waiver is not made on the
Security. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Security or
portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver
becomes effective. After an amendment or waiver becomes
effective, it shall bind every Securityholder.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the
Securityholders entitled to give their consent or take any
other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is
fixed, then notwithstanding the immediately preceding
paragraph, those persons who were Securityholders at such
record date (or their duly designated proxies), and only
those persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such
action, whether or not such persons continue to be Holders
after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment changes the terms of a Security, the Trustee
may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on
the Security regarding the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the
validity of such amendment.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS. The
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Trustee shall sign any amendment authorized pursuant to this
Article 9 if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In
signing such amendment the Trustee shall be entitled to
receive indemnity reasonably satisfactory to it and to
receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture.
SECTION 9.07 PAYMENT FOR CONSENT. Neither the
Company, any Affiliate of the Company nor any Subsidiary
shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise,
to any Holder for or as an inducement to any consent, waiver
or amendment of any of the terms or provisions of this
Indenture or the Securities unless such consideration is
offered to be paid or agreed to be paid to all Holders which
so consent, waive or agree to amend in the time frame set
forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Guarantees
----------
SECTION 10.01 UNCONDITIONAL GUARANTEES. (a) For
value received, (i) the Guarantors, jointly and severally,
hereby fully, unconditionally and absolutely guarantee (the
"Guarantees") to the Holders and to the Trustee the complete
and punctual payment and performance by the Company of the
Obligations, and further agree to pay any and all expenses
(including, without limitation, all fees and disbursements
of counsel) which may be paid or incurred by the Trustee or
the Holders in enforcing their rights under the Guarantees,
and (ii) the Company hereby fully, unconditionally and
absolutely guarantees (the "Company Guarantee") to the
Holders and to the Trustee the obligations of the Guarantors
described in clause (i).
(b) Failing payment or performance when due of any
Obligation guaranteed pursuant to the Guarantees, for
whatever reason, each Guarantor will be obligated to pay or
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perform the same immediately. Each of the Guarantors hereby
agrees that its obligations hereunder shall be full,
unconditional and absolute, irrespective of the validity,
regularity or enforceability of the Securities, the
Guarantees or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or
thereof, any release of any other Guarantor, 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
Guarantor. Each of the Guarantors hereby agrees that in the
event of a default in payment of the principal of, or
premium, if any, or interest on the Securities, whether at
the stated maturity or by declaration of acceleration, call
for redemption or otherwise, legal proceedings may be
instituted by the Trustee on behalf of the Holders or,
subject to Section 6.06, by the Holders, on the terms and
conditions set forth in this Indenture, directly against
each of the Guarantors to enforce the Guarantees without
first proceeding against the Company.
(c) Failing payment or performance of the Guarantees,
for whatever reason, the Company will be obligated to pay,
or to perform or cause the performance of, the same
immediately. The Company hereby agrees that its obligations
under the Company Guarantee shall be full, unconditional and
absolute, irrespective of the validity, regularity or
enforceability of the Securities, the Guarantees, the
Company Guarantee or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any
Holder of the Securities with respect to any provision
hereof or thereof, the recovery of any judgment against the
Company or any Guarantor, any action to enforce the same or
any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Company.
(d) The obligations of each Guarantor and the Company
under this Article 10 shall be as aforesaid full,
unconditional and absolute and shall not be impaired,
modified, released or limited by any occurrence or condition
whatsoever, including, without limitation, (i) any
compromise, settlement, release, waiver, renewal, extension,
indulgence or modification of, or any change in, any of the
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obligations and liabilities of the Company or any Guarantor
contained in the Securities or this Indenture, (ii) any
impairment, modification, release or limitation of the
liability of the Company, any Guarantor or any of their
estates in bankruptcy, or any remedy for the enforcement
thereof, resulting from the operation of any present or
future provision of any applicable Bankruptcy Law, as
amended, or other statute or from the decision of any court,
(iii) the assertion or exercise by the Company, any
Guarantor or the Trustee of any rights or remedies, (iv) the
assignment or the purported assignment of any property as
security for the Securities, including all or any part of
the rights of the Company or any Guarantor under this
Indenture, (v) the extension of the time for payment by the
Company or any Guarantor of any payments or other sums or
any part thereof owing or payable under any of the terms and
provisions of the Securities or this Indenture or of this
time for performance by the Company or any Guarantor of any
other obligations under or arising out of any such terms and
provisions or the extension of the renewal of any thereof,
(vi) the modification or amendment (whether material or
otherwise) of any duty, agreement or obligation of the
Company or any Guarantor set forth in this Indenture, (vii)
the voluntary or involuntary liquidation, dissolution, sale
or other disposition of all or substantially all of the
assets, marshalling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceeding affecting, the
Company or any of the Guarantors or any of their respective
assets, or the disaffirmance of the Securities, the
Guarantees, the Company Guarantee or this Indenture in any
such proceeding, (viii) the release or discharge of the
Company or any Guarantor from the performance or observance
of any agreement, covenant, term or condition contained in
any of such instruments by operation of law, (ix) the
unenforceability of the Securities, the Guarantees, the
Company Guarantee or this Indenture or (x) any other
circumstance which might otherwise constitute a legal or
equitable discharge of a surety or guarantor.
(e) The Guarantors and the Company each hereby (i)
waives diligence, presentment, demand of payment, filing of
claims with a court in the event of the merger, insolvency
or bankruptcy of the Company or a Guarantor, and
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all demands whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing the Guarantees
or the Company Guarantee may be transferred and that the
benefit of its obligations hereunder shall extend to each
holder of any agreement, instrument or document evidencing
the Guarantees or the Company Guarantee without notice to
them and (iii) covenants that its Guarantee or the Company
Guarantee, as the case may be, will not be discharged except
by complete performance of the Guarantees or the Company
Guarantee, as the case may be. Each Guarantor and the
Company further agrees that if at any time all or any part
of any payment theretofore applied by any person to any
Guarantee or the Company Guarantee is, or must be, rescinded
or returned for any reasons whatsoever, including without
limitation, the insolvency, bankruptcy or reorganization of
the Company or any Guarantor, such Guarantee or the Company
Guarantee, as the case may be, shall, to the extent that
such payment is or must be rescinded or returned, be deemed
to have continued in existence notwithstanding such
application, and the Guarantees or the Company Guarantee, as
the case may be, shall continue to be effective or be
reinstated, as the case may be, as though such application
had not been made.
(f) Each Guarantor shall be subrogated to all rights
of the Holders and the Trustee against the Company in
respect of any amounts paid by such Guarantor pursuant to
the provisions of this Indenture, PROVIDED, HOWEVER, that no
Guarantor shall be entitled to enforce or to receive any
payments arising out of, or based upon, such right of
subrogation until all of the Securities and the Guarantees
shall have been paid in full or discharged.
SECTION 10.02 LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and by its acceptance hereof each Holder
confirms that it is the intention of all such parties that
the guarantee by such Guarantor pursuant to its Guarantee
not constitute a fraudulent transfer or conveyance for
purposes of any federal, state or foreign law. To
effectuate the foregoing intention, the Holders and each
Guarantor hereby irrevocably agree that the obligations of
each Guarantor under its Guarantee shall be limited to the
maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from payments made by or on
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behalf of any other Guarantor in respect of the obligations
of such other Guarantor under its Guarantee or pursuant to
Section 10.03, result in the obligations of such Guarantor
under its Guarantee not constituting a fraudulent conveyance
or fraudulent transfer under federal, state or foreign law.
SECTION 10.03 CONTRIBUTION. In order to provide for
just and equitable contribution among the Guarantors, the
Guarantors agree, INTER SE, that, in the event any payment
or distribution is made by any Guarantor (a "Funding
Guarantor") under its Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other
Guarantor in a pro rata amount based on the Adjusted Net
Assets of each Guarantor (including the Funding Guarantor)
for all payments, damages and expenses incurred by the
Funding Guarantor in discharging the Company's obligations
with respect to the Securities or any other Guarantor's
obligations with respect to its Guarantee.
SECTION 10.04 EXECUTION AND DELIVERY OF GUARANTEES.
To further evidence the Guarantees and the Company Guarantee
set forth in Section 10.01, each Guarantor and the Company
hereby agree that for as long as any Guarantee or the
Company Guarantee is required to remain in effect, a
notation relating to the Guarantees and the Company
Guarantee substantially in the form of Exhibit B shall be
included on the reverse of each Security authenticated and
delivered by the Trustee and executed by either manual or
facsimile signature of an Officer of the Company on its
behalf and as attorney-in-fact on behalf of each Guarantor.
Each of the Guarantors and the Company hereby agrees
that its Guarantee and the Company Guarantee set forth in
Section 10.01 shall remain in full force and effect
notwithstanding any failure to include on each Security a
notation relating to such Guarantee and the Company
Guarantee.
If an Officer of a Guarantor or the Company whose
signature is on this Indenture or a Security no longer holds
that office at the time the Trustee authenticates such
Security or at any time thereafter, such Guarantor's
Guarantee of such Security, or the Company Guarantee, as the
case may be, shall be valid nevertheless.
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The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due
delivery of any Guarantee and the Company Guarantee set
forth in this Indenture on behalf of the Guarantor and the
Company.
SECTION 10.05 ADDITION OF GUARANTORS. (a) For as
long as any Guarantees are required to remain in effect
pursuant to the terms of this Indenture, promptly but in no
event later than 15 days following the acquisition or
creation of any Wholly Owned Subsidiary after the date of
this Indenture, the Company shall cause such Subsidiary to
execute and deliver a supplemental indenture evidencing its
provision of a Guarantee in accordance with clause (b)
below.
(b) Any person that was not a Guarantor on the date of
the Indenture may become a Guarantor by executing and
delivering to the Trustee (i) a supplemental indenture in
form and substance satisfactory to the Trustee, which
subjects such person to the provisions (including the
representations and warranties) of this Indenture as a
Guarantor and (ii) an Opinion of Counsel and Officers'
Certificate 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 and equitable
principles as may be acceptable to the Trustee in its
discretion).
SECTION 10.06 RELEASE OF GUARANTEE. (a)
Notwithstanding anything to the contrary contained in this
Article 10, in the event that (i) any Guarantor shall no
longer be obligated to guarantee any Indebtedness under the
Revolving Credit Facility; and (ii) no Default or Event of
Default shall have occurred and be continuing, then,
following compliance with the next following sentence, such
Guarantor shall be released from its obligations under this
Indenture and the Guarantee of such Guarantor and the
Company Guarantee with respect to such Guarantee each shall
be of no further force or effect. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that the terms of this
Section 10.06(a) have been satisfied with respect to any
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Guarantor, the Trustee shall execute any documents
reasonably required and reasonably acceptable in form and
substance to the Trustee to evidence the release of such
Guarantor from the obligations of its Guarantee hereunder
and the release of the Company from its obligations under
the Company Guarantee with respect to such Guarantee.
(b) Concurrently with any sale or other disposition
(other than to the Company or any Subsidiary of the Company)
by way of merger, consolidation or otherwise of all or
substantially all the assets of a Guarantor or all the
capital stock of a Guarantor permitted by and in accordance
with the terms of this Indenture, such Guarantor (in the
event of such a sale or other disposition of all the capital
stock of such Guarantor) or the corporation acquiring the
property (in the event of such a sale or other disposition,
by way of a merger, consolidation or otherwise, of all or
substantially all the assets of such Guarantor) shall be
released and relieved of the obligations under its
Guarantee. Upon delivery by the Company to the Trustee of
an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the
Company in accordance with the provisions of this Indenture,
the Trustee shall execute any documents reasonably required
and reasonably acceptable in form and substance to the
Trustee to evidence the release of such Guarantor from the
obligations under its Guarantee.
SECTION 10.07 CONSENT TO JURISDICTION AND SERVICE OF
PROCESS. Each Guarantor that is not organized under the
laws of the United States (including the States and the
District of Columbia) (each a "Non-U.S. Guarantor") hereby
appoints the Company as the authorized agent thereof (the
"Authorized Agent") upon whom process may be served in any
action, suit or proceeding arising out of or based on this
Indenture or the Securities which may be instituted in the
Supreme Court of the State of New York or the United States
District Court for the Southern District of New York, in
either case in The Borough of Manhattan, The City of New
York, by the Holder of any Security, and each Non-U.S.
Guarantor hereby waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding
and expressly and irrevocably accepts and submits, for the
benefit of the Holders from time to time of the Securities,
to the nonexclusive jurisdiction of any such court in
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respect of any such action, suit or proceeding, for itself
and with respect to its properties, revenues and assets.
Such appointment shall be irrevocable unless and until the
appointment of a successor authorized agent for such
purpose, and such successor's acceptance of such
appointment, shall have occurred. Each Non-U.S. Guarantor
agrees to take any and all actions, including the filing of
any and all documents and instruments, that may be necessary
to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent
with respect to any such action shall be deemed, in every
respect, effect service of process upon any such Non-U.S.
Guarantor. Notwithstanding the foregoing, any action
against any Non-U.S. Guarantor arising out of or based on
any Security may also be instituted by the Holder of such
Security in any court in the jurisdiction of organization of
such Non-U.S. Guarantor, and such Non-U.S. Guarantor
expressly accepts the jurisdiction of any such court in any
such action. The Company shall require the Authorized Agent
to agree in writing to irrevocably accept the foregoing
appointment as agent for service of process and to confirm
that it will accept, and will forward as promptly as
practicable to the Company in accordance with Section 13.02,
all service of process referred to in the first sentence of
this Section 10.07.
SECTION 10.08 WAIVER OF IMMUNITY. To the extent that
any Non-U.S. Guarantor or any of its properties, assets or
revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity on the grounds
of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any thereof,
from set-off or counterclaim, from the jurisdiction of any
court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for
the enforcement of any judgment, in any jurisdiction in
which proceedings may at any time be commenced, with respect
to its obligations, liabilities or any other matter under or
arising out of or in connection with this Indenture or the
Securities, such Non-U.S. Guarantor, to the maximum extent
permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity
and consents to such relief and enforcement.
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SECTION 10.09 JUDGMENT CURRENCY. Each Non-U.S.
Guarantor agrees to indemnify the Trustee and each Holder
against any loss incurred by it as a result of any judgment
or order being given or made and expressed and paid in a
currency (the "Judgment Currency") other than United States
dollars and as a result of any variation as between (i) the
rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such
judgment or order and (ii) the spot rate of exchange in The
City of New York at which the Trustee or such Holder on the
date of payment of such judgment or order is able to
purchase United States dollars with the amount of the
Judgment Currency actually received by the Trustee or such
Holder. The foregoing indemnity shall constitute a separate
and independent obligation of each Non-U.S. Guarantor and
shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion
into, United States dollars.
ARTICLE 11
Subordination of Securities
---------------------------
SECTION 11.01 SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and
agrees, that, to the extent and in the manner herein-after
set forth in this Article (subject to the provisions of
Article 8), the payment of the principal of and premium, if
any) and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Debt of
the Company.
SECTION 11.02 PAYMENT OVER OF PROCEEDS UPON
DISSOLUTION, Etc.
In the event of (a) any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in
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connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors or any other marshalling of
assets or liabilities of the Company, then and in any such
event specified in (a), (b) or (c) above (each such event,
if any, herein sometimes referred to as a "Proceeding") the
holders of Senior Debt of the Company will be first entitled
to receive payment in full of all amounts due or to become
due on or in respect of all Senior Debt of the Company, or
provision shall be made for such payment, in cash or Cash
Equivalents or otherwise in a manner satisfactory to the
holders of such Senior Debt, before the Holders of the
Securities are entitled to receive any payment or
distribution of any kind or character, on account of
principal of (or premium, if any) or interest on or other
obligations in respect of the Securities or on account of
any purchase or other acquisition of Securities by the
Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and
collectively, as a "Securities Payment"), and to that end
the holders of Senior Debt of the Company shall be entitled
to receive, for application to the payment thereof, any
Securities Payment which may be payable or deliverable in
respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing
provisions of this Section, the Trustee receives payment or
distribution of assets of the Company of any kind or
character, before all the Senior Debt of the Company is paid
in full in cash or Cash Equivalents, then and in such event,
subject to Section 11.04, such Securities Payment shall be
paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other person making payment or
distribution of assets of the Company for application to the
payment of all Senior Debt of the Company remaining unpaid,
to the extent necessary to pay the Senior Debt of the
Company in full in cash or Cash Equivalents, after giving
effect to any concurrent payment or distribution to or for
the holders of Senior Debt of the Company.
For purposes of this Article only, the words "any
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payment or distribution of any kind or character, whether in
cash, property or securities" shall not be deemed to include
a payment or distribution of stock or securities of the
Company provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of
competent jurisdiction in a reorganization proceeding under
any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment
which stock or securities are subordinated in right of
payment to all then outstanding Senior Debt of the Company,
to at least the same extent as the Securities are so
subordinated as provided in this Article; PROVIDED that (1)
if a new corporation results from such reorganization or
readjustment, such corporation assumes any Senior Debt of
the Company not paid in full in cash or Cash Equivalents in
connection with such reorganization or readjustment and (2)
the rights of the holders of such Senior Debt are not,
without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another
person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially
all of its properties and assets as an entirety to another
person upon the terms and conditions set forth in Article 5
shall not be deemed a Proceeding for the purposes of this
Section if the person formed by such consolidation or into
which the Company is merged or the person which acquires by
conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as part of such
consolidation, merger, conveyance or transfer, comply with
the conditions set forth in Article 5.
SECTION 11.03 NO PAYMENT WHEN SENIOR DEBT IN
DEFAULT.
In the event that any Senior Payment Default (as
defined below) shall have occurred and be continuing, then
the Company may not make any Securities Payment unless and
until such Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due
and payable in respect of Designated Senior Debt shall have
been paid in full, or provision shall have been made for
such payment, in cash or Cash Equivalents or otherwise in a
manner satisfactory to the holders of such Designated Senior
Debt. "Senior Payment Default" means any default in the
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payments of principal of (or premium, if any) or interest on
any Designated Senior Debt of the Company when due, whether
at the maturity thereof or by declaration or acceleration,
call for redemption or otherwise.
In the event that any Senior Nonmonetary Default (as
defined below) shall have occurred and be continuing, then,
upon the receipt by the Company and the Trustee of written
notice of such Senior Nonmonetary Default from the
representatives of holders of the Designated Senior Debt to
which such default relates, the Company may not make any
Securities Payment (other than payments previously made
pursuant to Article 8) for a period (the "blockage period")
commencing on the date the Company and Trustee receive such
written notice and ending on the earlier of (i) the 179th
day after the date of such receipt of such written notice
and (ii) the date, if any, on which the Designated Senior
Debt to which such default relates is discharged or such
default is waived or otherwise cured. In any event, not
more than one blockage period may be commenced during any
period of 360 consecutive days and there shall be a period
of at least 181 consecutive days in each period of 360
consecutive days when no blockage period is in effect. For
all purposes of this paragraph, no Senior Nonmonetary
Default that existed or was continuing on the date of
commencement of any blockage period with respect to the
Designated Senior Debt initiating such blockage period will
be, or can be, made the basis for the commencement of a
subsequent blockage period unless such default has been
cured or waived for a period of not less than 90 consecutive
days. "Senior Nonmonetary Default" means the occurrence or
existence and continuance of any event of default, or of any
event which, after notice or lapse of time (or both), would
become an event of default, under the terms of any
instrument pursuant to which any Designated Senior Debt is
outstanding, permitting (after notice or lapse of time or
both) one or more holders of such Senior Debt (or a trustee
or agent on behalf of the holders thereof) to declare such
Senior Debt due and payable prior to the date on which it
should otherwise become due and payable, other than a Senior
Payment Default.
In the event that, notwithstanding the foregoing, the
Company shall make any Securities Payment to the Trustee or
any Holder prohibited by the foregoing provisions of this
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Section, then and in such event, subject to Section 11.04,
such Securities Payment shall be paid over and delivered
forthwith to the holders of the Senior Debt of the Company
remaining unpaid, to the extent necessary to pay in full all
the Senior Debt of the Company.
The provisions of this Section shall not apply to any
Securities Payment with respect to which Section 11.02 would
be applicable.
SECTION 11.04 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the
Company, at any time except during the pendency of any
Proceeding referred to in Section 11.02 or under the
conditions described in Section 11.03, from making
Securities Payments, or (b) the application by the Trustee
of any money deposited with it hereunder to Securities
Payments or the retention of such Securities Payment by the
Holders, if, at the time of such application by the Trustee,
it did not have knowledge that such Securities Payment would
have been prohibited by the provisions of this Article.
SECTION 11.05 SUBROGATION TO RIGHTS OF HOLDERS OF
SENIOR DEBT
Subject to the payment in full of all amounts due or to
become due on or in respect of Senior Debt of the Company,
or the provision for such payment, in cash or Cash
Equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Company, the Holders of the
Securities shall be subrogated (equally and ratably with the
holders of all Indebtedness of the Company, if any, which by
its express terms is subordinated to Indebtedness of the
Company to substantially the same extent as the Securities
are subordinated to the Senior Debt of the Company and is
entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior
Debt) to the rights of the holders of such Senior Debt of
the Company to receive payments and distributions of cash,
property and securities applicable to the Senior Debt of the
Company until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions
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to the holders of the Senior Debt of the Company of any
cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to
the provisions of this Article to the holders of Senior Debt
of the Company by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or
on account of the Senior Debt of the Company.
SECTION 11.06. PROVISIONS SOLELY TO DEFINE RELATIVE
RIGHTS.
The provisions of this Article are and are intended
solely for the purpose of defining the relative rights of
the Holders on the one hand and the holders of Senior Debt
of the Company on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company,
its creditors other than holders of Senior Debt and the
Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders
of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become
due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other
than the holders of Senior Debt; or (c) prevent the Trustee
or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Debt of the Company to
receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 11.07 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all
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such purposes.
SECTION 11.08 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior
Debt of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company with
the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Debt of the
Company may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders
of the Securities and without impairing or releasing the
subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the
time of payment of, or renew, increase or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement
under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release
any person liable in any manner for the payment or
collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other
person.
SECTION 11.09 NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in
respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the
existence of any facts which could prohibit the making of
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any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of
Senior Debt of the Company or from any trustee therefor;
and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 7.01, shall be
entitled in all respects to assume that no such facts exist,
PROVIDED, HOWEVER, that if the Trustee shall not have
received the notice provided for in this Section at least
two Business Days prior to the date upon which by the terms
hereof any money may became payable for any purpose
(including, without limitation, the payment of the principal
of (and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which
such money was received and shall not be affected by any
notice to the contrary which may be received by it within
two Business Days prior to such date.
Subject to the provisions of Section 7.01, the Trustee
shall be entitled to rely on the delivery to it of a written
notice by a person representing himself to be a holder of
Senior Debt of the Company (or a trustee therefor) to
establish that such notice has been given by a holder of
Senior Debt of the Company (or a trustee therefor). In the
event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person
as a holder of Senior Debt of the Company to participate in
any payment or distribution pursuant to this Article, the
Trustee may request each person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of
Senior Debt of the Company held by such person, the extent
to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment
to such person pending judicial determination as to the
right of such person to receive such payment.
SECTION 11.10. RELIANCE ON JUDICIAL ORDER OR
CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, subject to
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the provisions of Section 7.01, and the Holders of the
Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior
Debt of the Company and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 11.11 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF
SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt of the Company and shall
not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or
securities to which any holders of Senior Debt of the
Company shall be entitled by virtue of this Article or
otherwise. With respect to the holders of Senior Debt of
the Company, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are
specifically set forth in this Article 11 and no implied
covenants or obligations with respect to holders of Senior
Debt of the Company shall be read into this Indenture
against the Trustee.
SECTION 11.12 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
DEBT; PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article with
respect to any Senior Debt of the Company which may at any
time be held by it, to the same extent as any other holder
of Senior Debt of the Company, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such
holder.
Nothing in this Article shall apply to claims of,
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or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 11.13 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article
in addition to or in place of the Trustee; PROVIDED,
HOWEVER, that Section 11.12 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.
SECTION 11.14 DEFEASANCE OF THIS ARTICLE 11.
The subordination of the Securities provided by this
Article is expressly made subject to the provisions for
defeasance or covenant defeasance in Article 8 hereof and,
anything herein to the contrary notwithstanding, upon the
effectiveness of any such defeasance or covenant defeasance,
the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article 11.
ARTICLE 12
Subordination of Guarantees
---------------------------
SECTION 12.01 GUARANTEES SUBORDINATE TO SENIOR DEBT OF
GUARANTORS.
Each Guarantor covenants and agrees, and each Holder of
a Security, by his acceptance thereof, likewise covenants
and agrees, that, to the extent and in the manner hereafter
set forth in this Article (subject to the provisions of
Article 8), the payment of the principal of (and premium, if
any) and interest on the Securities as guaranteed by each
Guarantor pursuant to its Guarantee are hereby expressly
made subordinate and subject in right of payment to the
prior payment in full of all Senior Debt of
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Guarantor.
SECTION 12.02 PAYMENT OVER OF PROCEEDS UPON
DISSOLUTION, Etc.
In the event of (a) any insolvency or bankrupt case or
proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith,
relative to a Guarantor or to its creditors, as such, or to
its asset, or (b) any liquidation, dissolution or other
winding up of a Guarantor, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets or liabilities of a Guarantor, then
and in any such event specified in (a), (b) or (c) above
(each such event, if any, herein sometimes referred to as a
"Guarantor Proceeding") the holders of Senior Debt of such
Guarantor will be first entitled to receive payment in full
of all amounts due or to become due on or in respect of all
Senior Debt of such Guarantor, or provision shall be made
for such payment, in cash or Cash Equivalents or otherwise
in a manner satisfactory to holders of such Senior Debt,
before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character, on
account of the Guarantee of such Guarantor (all such
payments and distributions herein referred to, individually
and collectively, as a "Guarantor Payment"), and to that end
the holders of Senior Debt of such Guarantor shall be
entitled to receive, for application to the payment thereof,
any Guarantor Payment which may be payable or deliverable in
respect of such Guarantee in any such Guarantor Proceeding.
In the event that, notwithstanding the foregoing
provisions of this Section, the Trustee shall have received
any Guarantor Payment before all Senior Debt of such
Subsidiary Guarantor is paid in full or payment thereof
provided for in cash or Cash Equivalents, then and in such
event, subject to Section 12.04, such Guarantor Payment
shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other person making payment or
distribution of assets of such Guarantor for application to
the payment of all Senior Debt of such Guarantor remaining
unpaid, to the extent necessary to pay the Senior Debt of
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such Guarantor in full in cash or Cash Equivalents, after
giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt of such Guarantor.
For purposes of this Article only, the words "any
payment or distribution of any kind or character, whether in
cash, property or securities" shall not be deemed to include
a payment or distribution of stock or securities of a
Guarantor provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of
competent jurisdiction in a reorganization proceeding under
any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment
which stock or securities are subordinated in right of
payment to all then outstanding Senior Debt of such
Guarantor to substantially the same extent as the Securities
are so subordinated as provided in this Article; PROVIDED
that (1) if a new corporation results from such
reorganization or readjustment, such corporation assumes any
Senior Debt of such Guarantor not paid in full in cash or
Cash Equivalents in connection with such reorganization or
readjustment and (2) the rights of the holders of such
Senior Debt of such Guarantor are not, without the consent
of such holders, altered by such reorganization or
readjustment. The consolidation of a Guarantor with, or the
merger of a Guarantor into, another person or the
liquidation or dissolution of a Guarantor following the
conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another person upon
the terms and conditions set forth in Article 5 shall not be
deemed a Guarantor Proceeding for the purposes of this
Section if the person formed by such consolidation or into
which such Guarantor is merged or the person which acquires
by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with
the conditions set forth in Article 5.
SECTION 12.03 NO PAYMENT WHEN SENIOR DEBT OF A
GUARANTOR IN DEFAULT.
In the event that any Guarantor Payment Default with
respect to a Guarantor shall have occurred and be
continuing, then no Guarantor Payment by such Guarantor
shall be made unless and until such Guarantor Payment
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Default shall have been cured or waived or shall have ceased
to exist or all amounts then due and payable in respect of
Designated Senior Debt of such Guarantor shall have been
paid in full, or provision shall have been made for such
payment, in cash or Cash Equivalents or otherwise in a
manner satisfactory to the holders of such Designated Senior
Debt. "Guarantor Payment Default" means any default in the
payment of principal of (or premium, if any) or interest on
any Designated Senior Debt of such Guarantor when due,
whether at the maturity thereof or by declaration of
acceleration, call for redemption or otherwise.
In the event that any Guarantor Senior Nonmonetary
Default (as defined below) with respect to a Guarantor shall
have occurred and be continuing, then, upon the receipt by
such Guarantor and the Trustee of written notice of such
Guarantor Senior Nonmonetary Default from the
representatives of holders of the Designated Senior Debt of
such Guarantor to which such default relates, no Guarantor
Payment (other than payments previously made pursuant to
Article Eight by such Guarantor shall be made for a period
(the "Guarantee blockage period") commencing on the date of
such receipt of such written notice and ending on the
earlier of (i) the 179th day after the date of such receipt
of such written notice and (ii) the date, if any, on which
the Designated Senior Debt of such Guarantor to which such
default relates is discharged or such default is waived or
otherwise cured. In any event, not more than one blockage
period may be commenced during any period of 360 consecutive
days and there shall be a period of at least 181 consecutive
days in each period of 360 consecutive days when no blockage
period is in effect. For all purposes of this paragraph, no
Guarantor Senior Nonmonetary Default that existed or was
continuing on the date of commencement of any Guarantee
blockage period with respect to the Designated Senior Debt
of such Guarantor initiating such Guarantee blockage period
will be, or can be, made the basis for the commencement of a
subsequent Guarantee blockage period unless such default has
been cured or waived for a period of not less than 90
consecutive days. "Guarantor Senior Nonmonetary Default"
means the occurrence or existence and continuance of any
event of default, or of any event which, after notice or
lapse of time (or both), would become an event of default,
under the terms of any instrument pursuant to which any
Designated Senior Debt of such Guarantor is outstanding,
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permitting (after notice or lapse of time or both) one or
more holders of such Senior Debt of such Guarantor (or a
trustee or agent on behalf of the holders thereof) to
declare such Senior Debt of such Guarantor due and payable
prior to the date on which it would otherwise become due and
payable, other than a Guarantor Senior Payment Default.
In the event that, notwithstanding the foregoing, a
Guarantor shall make any Guarantor Payment to the Trustee or
any Holder prohibited by the foregoing provisions of this
Section, then and in such event, subject to Section 12.04,
such Guarantor Payment shall be paid over and delivered
forthwith to the holders of the Senior Debt of such
Guarantor remaining unpaid, to the extent necessary to pay
in full all Senior Debt of such Guarantor.
The provisions of this Section shall not apply to any
Guarantor Payment with respect to which Section 12.02 would
be applicable.
SECTION 12.04 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this
Indenture or in any Guarantee shall prevent (a) any
Guarantor at any time except during the pendency of any
Guarantor Proceeding referred to in Section 12.02 or under
the conditions described in Section 12.03, from making any
Guarantor Payments, or (b) the application by the Trustee of
any money deposited with it hereunder to Guarantor Payments
or the retention of such Guarantor Payments by the Holders,
if, at the time of such application by the Trustee, it did
not have knowledge that such Guarantor Payment would have
been prohibited by the provisions of this Article.
SECTION 12.05 SUBROGATION TO RIGHTS OF HOLDERS OF
SENIOR DEBT OF A GUARANTOR.
Subject to the payment in full of all amounts due or to
become due on or in respect of Senior Debt of a Guarantor,
or the provision for such payment, in cash or Cash
Equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of such Guarantor, the Holders of the
Securities shall be subrogated (equally and ratably with the
holders of all Indebtedness of such Guarantor, if any, which
by its express terms is subordinated to Indebtedness
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of such Guarantor to substantially the same extent as the
Securities are subordinated to the Senior Debt of such
Guarantor and is entitled to like rights of subrogation by
reason of any payments or distributions made to holders of
such Senior Debt of the Guarantor) to the rights of the
holders of such Senior Debt of a Guarantor to receive
payments and distributions of cash, property and securities
applicable to the Senior Debt of such Guarantor until the
principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of
the Senior Debt of such Guarantor of any cash, property or
securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt of such Guarantor
by holders of the Securities or the Trustee, shall, as among
the Guarantors, their creditors other than holders of Senior
Debt of the Guarantors and the holders of the Securities, be
deemed to be a payment or distribution by the Company to or
on account of the Senior Debt of such Guarantor.
SECTION 12.06 PROVISIONS SOLELY TO DEFINE RELATIVE
RIGHTS.
The provisions of this Article are and are intended
solely for the purpose of defining the relative rights of
the Holders on the one hand and the holders of Senior Debt
of each Guarantor on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the
Guarantors, their creditors other than holders of Senior
Debt of the Guarantors and the Holders of the Securities,
the obligation of each Guarantor, which is absolute and
unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative
rights against any Guarantor of the Holders of the
Securities and creditors of such Guarantor other than the
holders of Senior Debt of such Guarantor; or (c) prevent the
Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior
<PAGE>
<PAGE> 102
Debt of a Guarantor to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 12.07 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.08 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior
Debt of any Guarantor to enforce subordination as herein
provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of such
Guarantor or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by such Guarantor
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may
have or be otherwise charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Debt of any
Guarantor may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the
Holders of the Securities and without impairing or releasing
the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to
the holders of Senior Debt of such Guarantor, do any one or
more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew
or alter, Senior Debt of such Guarantor, or otherwise amend
or supplement in any manner Senior Debt of such Guarantor or
any instrument evidencing the same or any agreement under
which Senior Debt of such Guarantor is outstanding; (ii)
sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt of such
Guarantor; (iii) release any person liable in any manner for
<PAGE>
<PAGE> 103
the collection of Senior Debt of such Guarantor; and (iv)
exercise or refrain from exercising any rights against such
Guarantor and any other person.
SECTION 12.09 NOTICE TO TRUSTEE.
Each Guarantor shall give prompt written notice to the
Trustee of any fact known to such Guarantor which would
prohibit the making of any payment to or by the Trustee in
respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of
any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received
written notice thereof from the Company, a Guarantor or a
holder of Senior Debt of a Guarantor or from any trustee
therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section
7.01, shall be entitled in all respects to assume that no
such facts exist; PROVIDED, HOWEVER, that if the Trustee
shall not have received the notice provided for in this
Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for
any purpose (including, without limitation, the payment of
the principal of (and premium, if any) or interest on any
Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received
by it within two Business Days prior to such date.
Subject to the provision of Section 7.01, the Trustee
shall be entitled to rely on the delivery to it of a written
notice by a person representing himself to be a holder of
Senior Debt of a Guarantor (or a trustee therefor) to
establish that such notice has been given by a holder of
Senior Debt of such Guarantor (or a trustee therefor). In
the event that the Trustee determines in good faith that
further evidence is required with respect to the right of
any person as a holder of Senior Debt of a Guarantor to
participate in any payment or distribution pursuant to this
Article, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to
<PAGE>
<PAGE> 104
the amount of Senior Debt of such Guarantor held by such
person, the extent to which such person is entitled to
participate in such payment or distribution and any other
facts pertinent to the rights of such person under this
Article, and if such evidence is not furnished, the Trustee
may defer any payment to such person pending judicial
determination as to the right of such person to receive such
payment.
SECTION 12.10. RELIANCE ON JUDICIAL ORDER OR
CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the
Guarantors referred to in this Article, the Trustee, subject
to the provisions of Section 7.01, and the Holders of the
Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior
Debt of a Guarantor and other Indebtedness of such
Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 12.11 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF
SENIOR DEBT OF THE GUARANTORS.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt of any Guarantor and
shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of
Securities or to any Guarantor or to any other person cash,
property or securities to which any holders of Senior Debt
of such Guarantor shall be entitled by virtue of this
Article or otherwise. With respect to the holders of Senior
Debt of any Guarantor, the Trustee undertakes to perform or
to observe only such of its covenants or obligations as are
specifically set forth in this Article 12 and no implied
covenants or obligations with respect to holders of Senior
Debt of any Guarantor shall be read into
<PAGE>
<PAGE> 105
this Indenture against the Trustee.
SECTION 12.12 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
DEBT OF THE GUARANTORS; PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article with
respect to any Senior Debt of any Guarantor which may at any
time be held by it, to the same extent as any other holder
of Senior Debt of such Guarantor, and nothing in this
Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
SECTION 12.13 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article in addition
to or in place of the Trustee; PROVIDED, HOWEVER, that
Section 12.12 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 12.13 DEFEASANCE OF THIS ARTICLE 12.
The subordination of the Guarantees provided by this
Article is expressly made subject to the provision for
defeasance or covenant defeasance in Article 8 hereof and,
anything herein to the contrary notwithstanding, upon the
effectiveness of any such defeasance or covenant defeasance,
the Guarantees then outstanding shall thereupon cease to be
subordinated pursuant to this Article 12.
<PAGE>
<PAGE> 106
ARTICLE 13
Miscellaneous
-------------
SECTION 13.01 TRUST INDENTURE ACT CONTROLS. If any
provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in
this Indenture by the TIA, the required provision shall
control.
SECTION 13.02 NOTICES. Any notice or communication
shall be in writing and delivered in person or mailed by
first class mail addressed as follows:
if to the Company or any Guarantor:
UNC Incorporated
175 Admiral Cochrane Drive
Annapolis, Maryland 21401-7394
Attention: Treasurer
if to the Trustee:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust -
Trustee Administration
The Company, the Guarantors or the Trustee by notice to
the others may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication mailed to a Securityholder
shall be mailed to the Securityholder at the
Securityholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a
<PAGE>
<PAGE> 107
notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee
receives it.
SECTION 13.03 COMMUNICATION BY HOLDERS WITH OTHER
HOLDERS. Securityholders may communicate pursuant to TIA
Section 312(b) with other Securityholders with respect to
their rights under this Indenture or the Securities. The
Company, the Guarantors, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).
SECTION 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Company
or any Guarantor to the Trustee to take or refrain from
taking any action under this Indenture, the Company or any
Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate in form and
substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in
the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION. Each certificate or opinion with respect to
compliance with a covenant or condition provided for in this
Indenture shall include:
(1) a statement that the person making such
certificate or opinion has read such covenant or
condition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of such
person, he has made such examination or investigation
<PAGE>
<PAGE> 108
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the
opinion of such person, such covenant or condition has
been complied with.
SECTION 13.06 WHEN SECURITIES DISREGARDED. In
determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company or by any person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be
disregarded and deemed not to be outstanding, except that,
for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or
consent, only Securities which the Trustee actually knows
are so owned shall be so disregarded. Also, subject to the
foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 13.07 RULES BY TRUSTEE, PAYING AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action
by or a meeting of Securityholders. The Registrar and the
Paying Agent may make reasonable rules for their functions.
SECTION 13.08 LEGAL HOLIDAYS. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions
are not required to be open in the State of New York or the
principal office of the Trustee. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date
is a Legal Holiday, the record date shall not be affected.
SECTION 13.09 GOVERNING LAW. This Indenture and the
Securities shall be governed by, and construed in accordance
with, the laws of the State of New York but without giving
effect to applicable principles of conflicts of law to the
extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 13.10. NO RECOURSE AGAINST OTHERS. A
<PAGE>
<PAGE> 109
director, officer, employee or stockholder, as such, of the
Company or any Guarantor shall not have any liability for
any obligations of the Company or such Guarantor under the
Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of
the Securities.
SECTION 13.11 SUCCESSORS. All agreements of the
Company and the Guarantors in this Indenture and the
Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.12 MULTIPLE 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. One signed copy is enough to
prove this Indenture.
SECTION 13.13 TABLE OF CONTENTS; HEADINGS. The table
of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not intended to be
considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.
<PAGE>
<PAGE> 110
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written
above.
UNC INCORPORATED THE BANK OF NEW YORK,
as Trustee
By____________________ By____________________
Name: Name:
Title: Title:
<PAGE>
<PAGE> 111
UNC HOLDINGS INC. UNC/LEAR SERVICES, INC.
By____________________ By____________________
Name: Name:
Title: Title:
UNC ALL FAB, INC. UNC METCALF SERVICING, INC.
By____________________ By____________________
Name: Name:
Title: Title:
UNC JOHNSON TECHNOLOGY, INC. UNC ARTEX, INC.
By____________________ By____________________
Name: Name:
Title: Title:
UNC CAMCO INCORPORATED UNC TEXAS CAMCO INCORPORATED
By____________________ By____________________
Name: Name:
Title: Title:
UNC ARDCO INCORPORATED UNC ENGINE & ENGINE PARTS,
INC.
By____________________ By____________________
Name: Name:
Title: Title:
UNC ACCESSORY OVERHAUL UNC AVIATION SERVICES, INC.
GROUP, INC.
By____________________ By____________________
Name: Name:
Title: Title:
<PAGE>
<PAGE> 112
UNC TRI-INDUSTRIES, INC. UNC AIRWORK CORPORATION
By____________________ By____________________
Name: Name:
Title: Title:
UNC PACIFIC AIRMOTIVE UNC PARTS COMPANY
CORPORATION, INC.
By____________________ By____________________
Name: Name:
Title: Title:
UNC/CFC ACQUISITION CO.
By____________________
Name:
Title:
<PAGE>
<PAGE> 113 Schedule I
GUARANTORS
UNC Holdings, Inc.
UNC/Lear Services, Inc.
UNC All Fab, Inc.
UNC Metalf Servicing, Inc.
UNC Johnson Technology, Inc.
UNC Artex, Inc.
UNC CAMCO Incorporated
UNC Texas CAMCO Incorporated
UNC ARDCO Incorporated
UNC Engine & Engine Parts, Inc.
UNC Accessory Overhaul Group, Inc.
UNC Aviation Services, Inc.
UNC Tri-Industries, Inc.
UNC Airwork Corporation
UNC Pacific Airmotive Corporation, Inc.
UNC Parts Company
UNC/CFC Acquisition Co.
<PAGE>
<PAGE> 114
Schedule II
DISCONTINUED OPERATIONS
UNC International, Inc.
United Nuclear Corporation
UNC Recovery Corporation
UNC Nuclear Industries, Inc.
ASW Liquidating, Inc.
CDI Dissolution Corp.
Burnside-Ott Aviation Training Center, Inc.
Reclamation, Inc.
UNC Air Capital, Inc.
<PAGE>
<PAGE> 115
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY 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 IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO., OR TO SUCH OTHER ENTITY AS IS 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
[Restricted Securities Legend]
"THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND UNDER APPLICABLE STATE
SECURITIES LAWS, AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED,
<PAGE>
<PAGE> 116
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (i) TO A
PERSON WHOM 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, (ii) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE) OR (iv) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF CASES (i) THROUGH (iv) IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE."
["IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
<PAGE>
<PAGE> 117
UNC INCORPORATED
No. $
CUSIP: 903070AE0
11% Senior Subordinated Note Due 2006
UNC Incorporated, a Delaware corporation, promises to
pay to or registered assigns, the
principal sum of Dollars
on June 1, 2006.
Interest Payment Dates: June 1 and December 1.
Record Dates: May 15 and November 15.
Additional provisions of this Security are set
forth on the other side of this Security.
UNC INCORPORATED,
by
[Seal]
____________________
Title:
____________________
Title:
Dated: May 30, 1996
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK
as Trustee, certifies
that this is one of the
Securities referred to
in the Indenture.
by
____________________
Authorized Signatory
<PAGE>
<PAGE> 118
[FORM OF REVERSE SIDE OF SECURITY]
UNC INCORPORATED
11% Senior Subordinated Note Due 2006
1. Interest
--------
UNC Incorporated, a Delaware corporation (such
corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the
"Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above;
PROVIDED, HOWEVER, that if a Registration Default (as
defined in the Registration Rights Agreement) occurs,
interest will accrue on this Security at a rate of 11-1/2%
per annum from and including the date on which any such
Registration Default shall occur but excluding the date on
which all Registration Defaults have been cured.
The Company will pay interest semiannually on June 1
and December 1 of each year. Interest on the Securities
will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from May 30,
1996. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay
interest on overdue principal at the rate borne by the
Securities plus 1% per annum, and it shall pay interest on
overdue installments of interest at the same rate to the
extent lawful.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except
defaulted interest) to the persons who are registered
holders of Securities at the close of business on the May 15
or November 15 next preceding the interest payment date even
if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments.
The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender
for payment of public and private
<PAGE>
<PAGE> 119
debts. The Company may pay principal and interest in
respect of the Definitive Securities by check payable in
such money. It may mail an interest check to a Holder's
registered address. Principal and interest payments in
respect of the Securities represented by a Global Security
will be made by wire transfer of immediately available funds
to the accounts specified by The Depository Trust Company.
3. Paying Agent and Registrar
--------------------------
Initially, The Bank of New York, a New York banking
corporation ("Trustee"), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The
Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-
registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture
dated as of May 30, 1996 ("Indenture"), among the Company,
the Guarantors and the Trustee. The terms of the Securities
include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on the
date of the Indenture (the "Act"). Capitalized terms used
herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the
Indenture and the Act for a statement of those terms.
The Securities are unsecured senior subordinated
obligations of the Company limited to $125,000,000 aggregate
principal amount (subject to Section 2.07 of the Indenture).
The Indenture imposes certain limitations on, among other
things, the issuance of Indebtedness by the Company, the
issuance of Indebtedness and Preferred Stock by the
Subsidiaries, the payment of dividends and other
distributions and acquisitions or retirements of the
Company's capital stock and subordinated obligations, the
sale or transfer of assets and Subsidiary stock and
<PAGE>
<PAGE> 120
transactions with Affiliates. In addition, the Indenture
limits the ability of the Company and the Subsidiaries to
restrict distributions and dividends from Subsidiaries and
requires the Company, under certain circumstances, to offer
to purchase Securities in the event of a Change of Control.
5. Optional Redemption
-------------------
The Securities may not be redeemed prior to June 1,
2001. On and after that date, the Company may redeem the
Securities in whole at any time or in part from time to time
at the following redemption prices (expressed in percentages
of principal amount), plus accrued interest to the
redemption date:
If redeemed during the 12-month period beginning June
1,
Year Percentage
---- ----------
2001 105.500%
2002 103.667%
2003 101.833%
2004 and thereafter 100.000%
6. Notice of Redemption
--------------------
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered
address. Securities in denominations larger than $1,000 may
be redeemed in part but only in whole multiples of $1,000.
If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to
be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date
interest ceases to accrue on such Securities (or such
portions thereof) called for redemption.
<PAGE>
<PAGE> 121
7. Subordination
-------------
The Indebtedness evidenced by the Securities is, to the
extent set forth in the Indenture, subordinate and subject
in right of payment to the prior payment in full of all
Senior Debt of the Company, and this Security is issued
subject to such provisions. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on
such Holder's behalf to take such action as may be necessary
or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee such Holder's attorney-in-fact
for any and all such purposes.
8. Put Provisions
--------------
Upon a Change of Control, any Holder of Securities will
have the right to cause the Company to repurchase all or any
part of the Securities of such Holder at a repurchase price
equal to 101% of the principal amount of the Securities to
be repurchased plus accrued and unpaid interest, if any, to
the date of repurchase as provided in, and subject to the
terms of, the Indenture.
9. Guarantees
----------
Payment and performance of the Obligations of the
Company in connection with the Indenture and the Securities
are fully, unconditionally and absolutely guaranteed,
jointly and severally, by the Guarantors on a senior
subordinated basis in accordance with the terms of Article
Ten of the Indenture. A Guarantor may be released from its
obligations under the Guarantee if certain conditions
described in the Indenture are satisfied.
10. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons
in denominations of $1,000 (or, in the case of Securities
sold to institutional "accredited investors" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act in
a transaction intended to be exempt from
<PAGE>
<PAGE> 122
registration under the Securities Act, minimum denominations
of $500,000) and whole multiples of $1,000. A Holder may
transfer or exchange securities in accordance with the
Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for
redemption (except, in the case of a Security to be redeemed
in part, the portion of the Security not to be redeemed) or
any Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest
payment date.
11. Persons Deemed Owners
---------------------
The registered holder of this Security may be treated
as the owner of it for all purposes. Owners of a beneficial
interest in the Global Security will not be considered the
owners or Holders of any Security. So long as the
Depository, or its nominee, is the Holder of the Global
Security, the Depository or such nominee, as the case may
be, will be considered the sole owner and Holder of the
Securities represented by the Global Securities for all
purposes under the Indenture and this Security.
12. Unclaimed Money
---------------
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent
shall pay the money back to the Company at its request
unless an abandoned property law designates another person.
After any such payment, Holders entitled to the money must
look only to the Company and not to the Trustee for payment.
13. Defeasance
----------
Subject to certain conditions, the Company at any time
may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with
the Trustee money or U.S. Government Obligations for the
payment of principal, premium (if any) and interest on the
<PAGE>
<PAGE> 123
Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be
amended with the written consent of the Holders of at least
a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may
be waived with the written consent of the Holders of a
majority in principal amount outstanding of the Securities.
Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and
the Trustee may amend the Indenture or the Securities to
cure any ambiguity, omission, defect or inconsistency, or to
add guarantees with respect to the Securities, or to comply
with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of
certificated Securities, or to comply with the Act, or to
add additional covenants or surrender Company rights, or to
reflect the release of any Guarantor from its Guarantee to
the extent permitted by the Indenture, or to make any change
that does not adversely affect the rights of any
Securityholder.
15. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include
(i) default for 30 days in payment of interest on the
Securities; (ii) default in payment of principal on the
Securities at maturity, upon redemption, upon declaration or
otherwise; (iii) failure by the Company or any Guarantor to
comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of
time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other
Indebtedness of the Company or any Subsidiary if the amount
accelerated (or so unpaid) exceeds $3,000,000; (v) certain
events of bankruptcy or insolvency with respect to the
Company or, in general, any Subsidiary; (vi) certain
judgments or decrees for the payment of money in excess of
$3,000,000; and (vii) except in accordance with the terms of
the Indenture, any Guarantee no longer being in full force
<PAGE>
<PAGE> 124
and effect or the disaffirmation of any Guarantee. If an
Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the
Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or
insolvency with respect to the Company are Events of Default
which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee
may refuse to enforce the Indenture or the Securities unless
it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing Default
(except a Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
16. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, the
Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and
may otherwise deal with and collect obligations owed to it
by the Company or its affiliates and may otherwise deal with
the Company or its affiliates with the same rights it would
have if it were not Trustee.
17. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such,
of the Company or any Guarantor shall not have any liability
for any obligations of the Company or the Guarantors under
the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the
Securities.
<PAGE>
<PAGE> 125
18. Authentication
--------------
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent)
manually signs the certificate of authentication on the
other side of this Security.
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in
common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform
Gift to Minors Act).
20. 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
Securities and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to
Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed
thereon.
21. Holders' Compliance with Registration Rights Agreement
------------------------------------------------------
Each Holder of a Security, by acceptance hereof,
acknowledges and agrees to the provisions of the
Registration Rights Agreement, including the obligations of
the Holders with respect to a registration and the
indemnification of the Company to the extent provided
therein.
22. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED
<PAGE>
<PAGE> 126
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Securityholder upon
written request and without charge to the Securityholder a
copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
UNC Incorporated
175 Admiral Cochrane Drive
Annapolis, Maryland 21401-7394
Attention: Treasurer
<PAGE>
<PAGE> 127
FORM OF NOTATION ON SECURITY RELATING
TO GUARANTEES AND COMPANY GUARANTEE
Each Guarantor (which term includes any successor
person under the Indenture), has fully, unconditionally and
absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture,
the complete and punctual payment and performance by the
Company of the Obligations in connection with the Indenture
and the Securities, and further agree to pay any and all
expenses (including, without limitation, all fees and
disbursements of counsel) which may be paid or incurred by
the Trustee or the Holders in enforcing their rights under
the Guarantees. The Indebtedness evidenced by the
Guarantees is, to the extent set forth in the Indenture,
subordinate and subject in right of payment to the prior
payment in full of all Senior Debt of the Guarantors, and
the Guarantees are issued subject to such provisions.
The Company (which term includes any successor person
under the Indenture), has fully, unconditionally and
absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture,
the obligations of the Guarantors pursuant to the Guarantees
set forth in Article 10 of the Indenture.
Pursuant to the Indenture, the Guarantees and the
Company Guarantee remain in effect only for as long the
Guarantors' Guarantees of certain other indebtedness of the
Company and the Subsidiaries remain in effect. The
obligations of the Guarantors and the Company to the Holders
of Securities and to the Trustee pursuant to the Guarantees,
the Company Guarantee and the Indenture are expressly set
forth in Article 10 of the Indenture and reference is hereby
made to the Indenture for the precise terms of the
Guarantees. Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.
UNC INCORPORATED ______________________
Attorney-in-Fact
As Attorney in Fact for
each Guarantor named in
By________________ the Indenture
Title:
<PAGE>
<PAGE> 128
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
And irrevocably appoint agent to
transfer this Security 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 other side of this
Security.
Signature Guarantee: ____________________________________
(Signature must be guaranteed by an
"eligible guarantor institution" that is, a bank,
stockbroker, savings and loan association or
credit union meeting the requirements of the
Registrar, which requirements include membership
or participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
<PAGE>
<PAGE> 129
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of
Securities held in (check applicable space) ____ book-entry
or _____ definitive form by the undersigned.
The undersigned (check one box below):
__ has requested the Trustee by written order to deliver
in exchange for its beneficial interest in the Global
Security held by the Depository a Security or
Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal
to its beneficial interest in such Global Security (or
the portion thereof indicated above); or
__ has requested the Trustee by written order to exchange
or register the transfer of a Security or Securities.
The undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
(1) - acquired for the undersigned's own account,
without Transfer (in satisfaction of Section
2.06(a)(ii)(A) or Section 2.06(d)(i)(A) of
the Indenture); or
(2) - transferred to the Company; or
(3) - transferred pursuant to and in compliance
with Rule 144A under the Securities Act of
1933, as amended; or
(4) - transferred pursuant to and in compliance
with Regulation S under the Securities Act of
1933, as amended; or
(5) - transferred pursuant to and in compliance
with Rule 144 under the Securities Act of
1933, as amended; or
(6) - transferred pursuant to an effective
registration statement under the Securities
Act of 1933, as amended.
<PAGE>
<PAGE> 130
Unless one of the boxes is checked, the Trustee will refuse
to register any of the Securities evidenced by this
certificate in the name of any person other than the
registered holder thereof; PROVIDED, HOWEVER, that if box
(4), (5) or (7) is checked, the Company or the Trustee may
require evidence reasonably satisfactory to them as to the
compliance with the restrictions set forth in the legend on
the face of this Security.
____________________
Signature
Signature Guarantee: ___________________________
(Signature must be guaranteed by an "eligible
guarantor institution", that is, a bank,
stockbroker, saving and loan association or credit
union meeting the requirements of the Registrar,
which requirements include membership or
participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other
signature guarantee program as may be determined
by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
<PAGE>
<PAGE> 131
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.08 or 4.15 of the
Indenture, check the box:
______
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.08 or 4.15 of
the Indenture, state the amount: $__________
Date:____________ Your Signature:____________________
(Sign exactly as your name appears on the other
side of the Security)
Signature Guarantee:______________________________________
(Signature must be guaranteed by an "eligible
guarantor institution", that is, a bank,
stockbroker, savings and loan association or
credit union meeting the requirements of the
Registrar, which requirements include membership
or participation in the Securities Transfer Agents
Medallion program ("STAMP") or such other
"signature guarantee program" as may be determined
by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
<PAGE>
<PAGE> 132
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
Date of Exchange
Amount of decrease in Principal Amount of this Global
Security
Amount of increase in Principal Amount of this Global
Security
Principal Amount of this Global Security following such
decrease or increase
Signature of authorized signatory of Trustee or Securities
Custodian
<PAGE>
<PAGE> 133
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY AND
PRIVATE EXCHANGE SECURITY]
*
**
UNC INCORPORATED
No. $
CUSIP:
11% Senior Subordinated Note Due 2006
UNC Incorporated, a Delaware corporation, promises to
pay to or registered assigns, the
principal sum of Dollars
on June 1, 2006.
Interest Payment Dates: June 1 and December 1.
Record Dates: May 15 and November 15.
Additional provisions of this Security are set forth on
the other side of this Security.
UNC INCORPORATED,
by
[Seal]
____________________________
Title:
____________________________
Title
* If the Security is to be issued in global form add
the Global Securities Legend from Exhibit A and the
attachment to Exhibit A captioned "[TO BE ATTACHED TO GLOBAL
SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY".
** If the Security is a Private Exchange Security
issued in a Private Exchange to the Initial Purchasers
holding an unsold portion of its initial allotment, add the
restricted securities legend from Exhibit A and include the
"Certificate to be Delivered upon Exchange or Registration
of Transfer of Restricted Securities" from Exhibit A.
<PAGE>
<PAGE> 134
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK
as Trustee, certifies
that this is one of the
Securities referred to
in the Indenture.
by
____________________
Authorized Signatory
<PAGE>
<PAGE> 135
[FORM OF REVERSE SIDE OF SECURITY]
UNC INCORPORATED
11% Senior Subordinated Note Due 2006
1. Interest
--------
UNC Incorporated, a Delaware corporation (such
corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the
"Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above;
PROVIDED, HOWEVER, that if a Registration Default (as
defined in the Registration Rights Agreement) occurs,
interest will accrue on this Security at a rate of 11-1/2%
per annum from and including the date on which any such
Registration Default shall occur but excluding the date on
which all Registration Defaults have been cured.
The Company will pay interest semiannually on June 1
and December 1 of each year. Interest on the Securities
will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from May 30,
1996. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay
interest on overdue principal at the rate borne by the
Securities plus 1% per annum, and it shall pay interest on
overdue installments of interest at the same rate to the
extent lawful.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except
defaulted interest) to the persons who are registered
holders of Securities at the close of business on the May 15
or November 15 next preceding the interest payment date even
if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments.
The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender
for payment of public and private
<PAGE>
<PAGE> 136
debts. The Company may pay principal and interest in
respect of the Definitive Securities by check payable in
such money. It may mail an interest check to a Holder's
registered address. Principal and interest payments in
respect of the Securities represented by a Global Security
will be made by wire transfer of immediately available funds
to the accounts specified by The Depository Trust Company.
3. Paying Agent and Registrar
--------------------------
Initially, The Bank of New York, a New York banking
corporation ("Trustee"), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The
Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-
registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture
dated as of May 30, 1996 ("Indenture"), among the Company,
the Guarantors and the Trustee. The terms of the Securities
include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on the
date of the Indenture (the "Act"). Capitalized terms used
herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the
Indenture and the Act for a statement of those terms.
The Securities are unsecured senior subordinated
obligations of the Company limited to $125,000,000 aggregate
principal amount (subject to Section 2.07 of the Indenture).
The Indenture imposes certain limitations on, among other
things, the issuance of Indebtedness by the Company, the
issuance of Indebtedness and Preferred Stock by the
Subsidiaries, the payment of dividends and other
distributions and acquisitions or retirements of the
Company's capital stock and subordinated obligations, the
sale or transfer of assets and Subsidiary stock and
transactions with Affiliates. In addition, the Indenture
<PAGE>
<PAGE> 139
limits the ability of the Company and the Subsidiaries to
restrict distributions and dividends from Subsidiaries and
requires the Company, under certain circumstances, to offer
to purchase Securities in the event of a Change of Control.
5. Optional Redemption
-------------------
The Securities may not be redeemed prior to June 1,
2001. On and after that date, the Company may redeem the
Securities in whole at any time or in part from time to time
at the following redemption prices (expressed in percentages
of principal amount), plus accrued interest to the
redemption date:
If redeemed during the 12-month period beginning June
1,
Year Percentage
---- ----------
2001 105.500%
2002 103.667%
2003 101.833%
2004 and thereafter 100.000%
6. Notice of Redemption
--------------------
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered
address. Securities in denominations larger than $1,000 may
be redeemed in part but only in whole multiples of $1,000.
If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to
be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date
interest ceases to accrue on such Securities (or such
portions thereof) called for redemption.
7. Subordination
-------------
The Indebtedness evidenced by the Securities is, to the
<PAGE>
<PAGE> 138
extent set forth in the Indenture, subordinate and subject
in right of payment to the prior payment in full of all
Senior Debt of the Company, and this Security is issued
subject to such provisions. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on
such Holder's behalf to take such action as may be necessary
or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee such Holder's attorney-in-fact
for any and all such purposes.
8. Put Provisions
--------------
Upon a Change of Control, any Holder of Securities will
have the right to cause the Company to repurchase all or any
part of the Securities of such Holder at a repurchase price
equal to 101% of the principal amount of the Securities to
be repurchased plus accrued and unpaid interest, if any, to
the date of repurchase as provided in, and subject to the
terms of, the Indenture.
9. Guarantees
----------
Payment and performance of the Obligations of the
Company in connection with the Indenture and the Securities
are fully, unconditionally and absolutely guaranteed,
jointly and severally, by the Guarantors on a senior
subordinated basis in accordance with the terms of Article
Ten of the Indenture. A Guarantor may be released from its
obligations under the Guarantee if certain conditions
described in the Indenture are satisfied.
10. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons
in denominations of $1,000 (or, in the case of Securities
sold to institutional "accredited investors" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act in
a transaction intended to be exempt from registration under
the Securities Act, minimum denominations of $500,000) and
whole multiples of $1,000. A Holder may transfer or
exchange securities in accordance with the Indenture. The
<PAGE>
<PAGE> 139
Registrar may require a Holder, among other things, to
furnish appropriate endorsements or transfer documents and
to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part,
the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest
payment date.
11. Persons Deemed Owners
---------------------
The registered holder of this Security may be treated
as the owner of it for all purposes. Owners of a beneficial
interest in the Global Security will not be considered the
owners or Holders of any Security. So long as the
Depository, or its nominee, is the Holder of the Global
Security, the Depository or such nominee, as the case may
be, will be considered the sole owners and Holder of the
Securities represented by the Global Securities for all
purposes under the Indenture and this Security.
12. Unclaimed Money
---------------
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent
shall pay the money back to the Company at its request
unless an abandoned property law designates another person.
After any such payment, Holders entitled to the money must
look only to the Company and not to the Trustee for payment.
13. Defeasance
----------
Subject to certain conditions, the Company at any time
may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with
the Trustee money or U.S. Government Obligations for the
payment of principal, premium (if any) and interest on the
Securities to redemption or maturity, as the case may be.
<PAGE>
<PAGE> 140
14. Amendment, Waiver
_________________
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be
amended with the written consent of the Holders of at least
a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may
be waived with the written consent of the Holders of a
majority in principal amount outstanding of the Securities.
Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and
the Trustee may amend the Indenture or the Securities to
cure any ambiguity, omission, defect or inconsistency, or to
add guarantees with respect to the Securities, or to comply
with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of
certificated Securities, or to comply with the Act, or to
add additional covenants or surrender Company rights, or to
reflect the release of any Guarantor from its Guarantee to
the extent permitted by the Indenture, or to make any change
that does not adversely affect the rights of any
Securityholder.
15. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include
(i) default for 30 days in payment of interest on the
Securities; (ii) default in payment of principal on the
Securities at maturity, upon redemption, upon declaration or
otherwise; (iii) failure by the Company or any Guarantor to
comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of
time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other
Indebtedness of the Company or any Subsidiary if the amount
accelerated (or so unpaid) exceeds $3,000,000; (v) certain
events of bankruptcy or insolvency with respect to the
Company or, in general, any Subsidiary; (vi) certain
judgments or decrees for the payment of money in excess of
$3,000,000; and (vii) except in accordance with the terms of
the Indenture, any Guarantee no longer being in full force
and effect or the disaffirmation of any Guarantee. If an
Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the
<PAGE>
<PAGE> 141
Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or
insolvency with respect to the Company are Events of Default
which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee
may refuse to enforce the Indenture or the Securities unless
it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing Default
(except a Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
16. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, the
Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and
may otherwise deal with and collect obligations owed to it
by the Company or its affiliates and may otherwise deal with
the Company or its affiliates with the same rights it would
have if it were not Trustee.
17. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such,
of the Company or any Guarantor shall not have any liability
for any obligations of the Company or the Guarantors under
the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the
Securities.
18. Authentication
--------------
This Security shall not be valid until an authorized
<PAGE>
<PAGE> 142
signatory of the Trustee (or an authenticating agent)
manually signs the certificate of authentication on the
other side of this Security.
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in
common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform
Gift to Minors Act).
20. 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
Securities and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to
Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed
thereon.
21. Holders' Compliance with Registration Rights Agreement
------------------------------------------------------
Each Holder of a Security, by acceptance hereof,
acknowledges and agrees to the provisions of the
Registration Rights Agreement, including the obligations of
the Holders with respect to a registration and the
indemnification of the Company to the extent provided
therein.
22. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
<PAGE>
<PAGE> 143
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Securityholder upon
written request and without charge to the Securityholder a
copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
UNC Incorporated
175 Admiral Cochrane Drive
Annapolis, Maryland 21401-7394
Attention: Treasurer
<PAGE>
<PAGE> 144
FORM OF NOTATION ON SECURITY RELATING
TO GUARANTEES AND COMPANY GUARANTEE
Each Guarantor (which term includes any successor
person under the Indenture), has fully, unconditionally and
absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture,
the complete and punctual payment and performance by the
Company of the Obligations in connection with the Indenture
and the Securities, and further agree to pay any and all
expenses (including, without limitation, all fees and
disbursements of counsel) which may be paid or incurred by
the Trustee or the Holders in enforcing their rights under
the Guarantees. The Indebtedness evidenced by the
Guarantees is, to the extent set forth in the Indenture,
subordinate and subject in right of payment to the prior
payment in full of all Senior Debt of the Guarantors, and
the Guarantees are issued subject to such provisions.
The Company (which term includes any successor person
under the Indenture), has fully, unconditionally and
absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture,
the obligations of the Guarantors pursuant to the Guarantees
set forth in Article 10 of the Indenture.
Pursuant to the Indenture, the Guarantees and the
Company Guarantee remain in effect only for as long the
Guarantors' Guarantees of certain other indebtedness of the
Company and the Subsidiaries remain in effect. The
obligations of the Guarantors and the Company to the Holders
of Securities and to the Trustee pursuant to the Guarantees,
the Company Guarantee and the Indenture are expressly set
forth in Article 10 of the Indenture and reference is hereby
made to the Indenture for the precise terms of the
Guarantees. Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.
UNC INCORPORATED ____________________
Attorney-in-Fact
As Attorney in Fact for
each Guarantor named in
By______________ the Indenture
Title:
<PAGE>
<PAGE> 145
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
And irrevocably appoint agent to
transfer this Security 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 other side of this
Security.
Signature Guarantee: _________________________________
(Signature must be guaranteed by an "eligible
guarantor institution" that is, a bank,
stockbroker, saving and loan association or credit
union meeting the requirements of the Registrar,
which requirements include membership or
participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined
by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
<PAGE>
<PAGE> 146
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.08 or 4.15 of the
Indenture, check the box: _____
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.08 or 4.15 of
the Indenture, state the amount: $__________
Date:____________ Your Signature:_____________________
(Sign exactly as your name appears on the other
side of the Security)
Signature Guarantee: _____________________________________
(Signature must be guaranteed by an "eligible
guarantor institution", that is, a bank,
stockbroker, saving and loan association or credit
union meeting the requirements of the Registrar,
which requirements include membership or
participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined
by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
<PAGE>
<PAGE> 147
UNC INCORPORATED
11% Senior Subordinated Notes Due 2006
INDENTURE
Dated as of May 30, 1996
THE BANK OF NEW YORK,
Trustee
<PAGE>
<PAGE> 148
CROSS-REFERENCE TABLE
TIA
Indenture
Section Section
------- -------
310 (a) (1) 7.10
(a) (2) 7.10
(a) (3) N.A.
(a) (4) N.A.
(b) 7.08; 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) N.A.
(b) (2) 7.06
(c) 13.02
(d) 7.06
314 (a) 4.03; 4.16;
13.02
(b) N.A.
(c) (1) 13.04
(c) (2) 13.04
(c) (3) N.A.
(d) N.A.
(e) 13.05
(f) N.A.
315 (a) 7.01
(b) 7.05; 13.02
(c) 7.01
(d) 7.01
(e) 6.11
316 (a) (last sentence) 13.06
(a) (1) (A) 6.05
(a) (1) (B) 6.04
(a) (2) N.A.
(b) 6.07
317 (a) (1) 6.08
(a) (2) 6.09
(b) 2.04
318 (a) 13.01
<PAGE>
<PAGE> 149
N.A. means Not Applicable
Note: This Cross Reference Table shall not, for any
purpose, be deemed to be part of the Indenture.
<PAGE>
<PAGE> 150
TABLE OF CONTENTS
-----------------
Page
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions 1
SECTION 1.02. Other Definitions 13
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act 14
SECTION 1.04. Rules of Construction 15
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating 16
SECTION 2.02. Execution and Authentication 17
SECTION 2.03. Registrar and Paying Agent 18
SECTION 2.04. Paying Agent To Hold Money in Trust 19
SECTION 2.05. Securityholder Lists 19
SECTION 2.06. Transfer and Exchange 19
SECTION 2.07. Replacement Securities 26
SECTION 2.08. Outstanding Securities 26
SECTION 2.09. Temporary Securities and Certificated
Securities 27
SECTION 2.10. Cancellation 28
SECTION 2.11. Defaulted Interest 28
SECTION 2.12. CUSIP Numbers 28
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee 29
SECTION 3.02. Selection of Securities to be Redeemed 29
SECTION 3.03. Notice of Redemption 30
SECTION 3.04. Effect of Notice of Redemption 30
SECTION 3.05. Deposit of Redemption Price 31
SECTION 3.06. Securities Redeemed in Part 31
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities 31
SECTION 4.02. Maintenance of Office or Agency 31
<PAGE>
<PAGE> 151
SECTION 4.03. SEC Reports 32
SECTION 4.04. Taxes 32
SECTION 4.05. Limitation on Additional Indebtedness 32
SECTION 4.06. Limitation on Restricted Payments 35
SECTION 4.07. Limitation on Dividends and Other Payment
Restrictions Affecting Company
Subsidiaries; Limitation on Preferred
Stock of Subsidiaries 37
SECTION 4.08. Limitation on Sales of Assets and
Subsidiary Stock 38
SECTION 4.09. Limitation on Transactions with
Affiliates 41
SECTION 4.10. Limitation on Liens 42
SECTION 4.11. Limitation on Senior Subordinated Debt 43
SECTION 4.12. Limitation on Subsidiary Guarantees 44
SECTION 4.13. Corporate Existence 44
SECTION 4.14. Limitation on Lines of Business 44
SECTION 4.15. Change of Control 45
SECTION 4.16. Compliance Certificate 47
SECTION 4.17. Further Instruments and Acts 48
ARTICLE 5
Successor Company
SECTION 5.01. When the Company or any Subsidiary May
Merge, etc. 48
SECTION 5.02. Successor Corporation Substituted 49
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default 50
SECTION 6.02. Acceleration 52
SECTION 6.03. Other Remedies 52
SECTION 6.04. Waiver of Past Defaults 52
SECTION 6.05. Control by Majority 53
SECTION 6.06. Limitation on Suits 53
SECTION 6.07. Rights of Holders to Receive Payment 54
SECTION 6.08. Collection Suit by Trustee 54
SECTION 6.09. Trustee May File Proofs of Claim 54
SECTION 6.10. Priorities 55
SECTION 6.11. Undertaking for Costs 55
SECTION 6.12. Waiver of Stay or Extension Laws 55
<PAGE>
<PAGE> 152
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee 56
SECTION 7.02. Rights of Trustee 57
SECTION 7.03. Individual Rights of Trustee 58
SECTION 7.04. Trustee's Disclaimer 58
SECTION 7.05. Notice of Defaults 58
SECTION 7.06. Reports by Trustee to Holders 58
SECTION 7.07. Compensation and Indemnity 58
SECTION 7.08. Replacement of Trustee 59
SECTION 7.09. Successor Trustee by Merger 60
SECTION 7.10. Eligibility; Disqualification 61
SECTION 7.11. Preferential Collection of Claims
Against Company 61
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance 61
SECTION 8.02. Conditions to Defeasance 62
SECTION 8.03. Application of Trust Money 63
SECTION 8.04. Repayment to Company 64
SECTION 8.05. Indemnity for Government Obligations 64
SECTION 8.06. Reinstatement 64
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders 64
SECTION 9.02. With Consent of Holders 65
SECTION 9.03. Compliance with Trust Indenture Act 66
SECTION 9.04. Revocation and Effect of Consents and
Waivers 66
SECTION 9.05. Notation on or Exchange of Securities 67
SECTION 9.06. Trustee to Sign Amendments 67
SECTION 9.07. Payment for Consent 67
ARTICLE 10
Guarantees
SECTION 10.01. Unconditional Guarantees 68
SECTION 10.02. Limitation of Guarantor's Liability 70
SECTION 10.03. Contribution 71
SECTION 10.04. Execution and Delivery of Guarantees 71
SECTION 10.05. Addition of Guarantors 71
<PAGE>
<PAGE> 153
SECTION 10.06. Release of Guarantee 72
SECTION 10.07. Consent to Jurisdiction and Service
of Process 73
SECTION 10.08. Waiver of Immunity 74
SECTION 10.09. Judgment Currency 74
ARTICLE 11
Subordination of Securities
SECTION 11.01. Securities Subordinate to Senior Debt 74
SECTION 11.02. Payment Over of Proceeds Upon
Dissolution, Etc. 75
SECTION 11.03. No Payment When Senior Debt in Default 76
SECTION 11.04. Payment Permitted If No Default 78
SECTION 11.05. Subrogation to Rights of Holders of
Senior Debt 78
SECTION 11.06. Provisions Solely to Define Relative
Rights 78
SECTION 11.07. Trustee to Effectuate Subordination 79
SECTION 11.08. No Waiver of Subordination Provisions 79
SECTION 11.09. Notice to Trustee 80
SECTION 11.10. Reliance on Judicial Order or Certificate
of Liquidating Agent 81
SECTION 11.11. Trustee Not Fiduciary for Holders of
Senior Debt 81
SECTION 11.12. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights 81
SECTION 11.13. Article Applicable to Paying Agents 82
SECTION 11.14. Defeasance of this Article 11 82
ARTICLE 12
Subordination of Guarantees
SECTION 12.01. Guarantees Subordinate to Senior Debt of
Guarantors 82
SECTION 12.02. Payment Over of Proceeds Upon
Dissolution, Etc. 83
SECTION 12.03. No Payment When Senior Debt of a
Guarantor in Default 84
SECTION 12.04. Payment Permitted If No Default 86
SECTION 12.05. Subrogation to Rights of Holders of
Senior Debt of a Guarantor 86
SECTION 12.06. Provisions Solely to Define Relative
Rights 87
SECTION 12.07. Trustee to Effectuate Subordination 87
<PAGE>
<PAGE> 154
SECTION 12.08. No Waiver of Subordination Provisions 87
SECTION 12.09. Notice to Trustee 88
SECTION 12.10. Reliance on Judicial Order or
Certificate of Liquidating Agent 89
SECTION 12.11. Trustee Not Fiduciary for Holders of
Senior Debt of the Guarantors 89
SECTION 12.12. Rights of Trustee as Holder of Senior
Debt of the Guarantors; Preservation of
Trustee's Rights 90
SECTION 12.13. Article Applicable to Paying Agents 90
SECTION 12.14. Defeasance of this Article 12 90
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls 90
SECTION 13.02. Notices 91
SECTION 13.03. Communication by Holders with Other
Holders 91
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent 91
SECTION 13.05. Statements Required in Certificate or
Opinion 92
SECTION 13.06. When Securities Disregarded 92
SECTION 13.07. Rules by Trustee, Paying Agent and
Registrar 92
SECTION 13.08. Legal Holidays 93
SECTION 13.09. Governing Law 93
SECTION 13.10. No Recourse Against Others 93
SECTION 13.11. Successors 93
SECTION 13.12. Multiple Originals 93
SECTION 13.13. Table of Contents; Headings 93
_______________
Schedule I Guarantors
Schedule II Discontinued Operations
Exhibit A Form of Initial Security
Exhibit B Form of Exchange Security
<PAGE>
<PAGE>
<PAGE> 1
EXHIBIT 5
Opinion of Miles & Stockbridge, a Professional Corporation
June 11, 1996
UNC Incorporated
175 Admiral Cochrane Drive
Annapolis, Maryland 21401
Gentlemen:
In connection with the registration under the Securities Act
of 1933 (the "Act") of 650,000 shares of common stock, par value
$.20 per share (the "Common Stock"), of UNC Incorporated, a
Delaware corporation (the "Company"), pursuant to the UNC/Garrett
Stock Purchase and Option Plan (the "Plan"), we have examined such
corporate records, certificates and documents as we deemed
necessary for the purpose of rendering this opinion. Based on the
foregoing, we advise you that in our opinion the 650,000 shares of
the Common Stock to be issued by the Company pursuant to the Plan
have been duly and validly authorized and, when issued upon the
terms set forth in the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the registration statement covering the Common Stock. In giving
our consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities
Act of 1933 or the rules and regulations promulgated by the
Securities and Exchange Commission thereunder.
Very truly yours,
Miles & Stockbridge,
a Professional Corporation
By: /s/ John B. Frisch
__________________________________
Principal
/rdc
<PAGE>
<PAGE>
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors and Shareholders
UNC Incorporated:
We consent to the incorporation by reference in the registration
statement of UNC Incorporated on Form S-8 (File No. 33- ) of our
report dated February 26, 1996, on our audits of the consolidated
financial statements of UNC Incorporated and subsidiaries as of
December 31, 1995 and 1994, and for the years then ended, which
report appears in the December 31, 1995 Annual Report on Form 10-K
of UNC Incorporated.
COOPERS & LYBRAND L.L.P.
Washington, D.C.
June 14, 1996
<PAGE>
<PAGE> 2
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Shareholders
UNC Incorporated:
We consent to incorporation by reference in the registration
statement on Form S-8 (File No. 33- ) of UNC Incorporated of our
report dated February 9, 1994, relating to the consolidated
statements of earnings, changes in shareholders' equity and cash
flows of UNC Incorporated and Subsidiaries for the year ended
December 31, 1993, which report is included in the December 31,
1995 Annual Report on Form 10-K of UNC Incorporated.
KPMG PEAT MARWICK LLP
Washington, D.C.
June 14, 1996
<PAGE>
<PAGE> 3
EXHIBIT 23.3
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration
Statement of UNC Incorporated (Form S-8) pertaining to the
UNC/Garrett Stock Purchase and Option Plan of our reported dated
March 1, 1996, with respect to the consolidated financial
statements of Garrett Aviation Services and subsidiary included in
the Current Report on Form 8-K of UNC Incorporated for the year
ended December 31, 1995, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Phoenix, Arizona
June 14, 1996
<PAGE>
<PAGE>
<PAGE> 1
EXHIBIT 24
1 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ Berl Bernhard
------------------------
Director
Witness:
/s/ Barbara Burnett
- -------------------------
Date: May 9, 1996
<PAGE>
<PAGE> 2
EXHIBIT 24
2 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ Beverly Byron
------------------------
Director
Witness:
/s/ Sylvia Mitchell
- -------------------------
Date: May 10, 1996
<PAGE>
<PAGE> 3
EXHIBIT 24
3 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ John K. Castle
------------------------
Director
Witness:
/s/ Laura F. Klun
- -------------------------
Date: May 13, 1996
<PAGE>
<PAGE> 4
EXHIBIT 24
4 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ William C. Hittinger
------------------------
Director
Witness:
/s/ Sylvia Mitchell
- -------------------------
Date: May 22, 1996
<PAGE>
<PAGE> 5
EXHIBIT 24
5 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ J. L. Holloway III
------------------------
Director
Witness:
/s/ Sylvia Mitchell
- -------------------------
Date: May 13, 1996
<PAGE>
<PAGE> 6
EXHIBIT 24
6 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ Freeman A. Hrabowski
------------------------
Director
Witness:
/s/ Shirley L. Bayley, Esq.
- -------------------------
Date: May 10, 1996
<PAGE>
<PAGE> 7
EXHIBIT 24
7 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ George V. McGowan
------------------------
Director
Witness:
/s/ Judith C. Williams
- -------------------------
Date: May 13, 1996
<PAGE>
<PAGE> 8
EXHIBIT 24
8 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ Jack Mosley
------------------------
Director
Witness:
/s/ Sylvia Mitchell
- -------------------------
Date: May 13, 1996
<PAGE>
<PAGE> 9
EXHIBIT 24
9 of 9
POWER OF ATTORNEY
The undersigned Director of UNC Incorporated (the "Company")
hereby authorizes the proper officers of the Company to file a Form
S-8 and all amendments thereto (including post-effective
amendments) for the purpose of registering under the Securities Act
of 1933 shares of the outstanding Common Stock of the Company which
may be purchased or issued from time to time pursuant to the terms
of the UNC/Garrett Stock Purchase and Option Plan.
The undersigned Director of the Company hereby appoints
Richard H. Lange, with full power of substitution, his true and
lawful attorney and agent, acting in the name and on behalf of the
undersigned, to execute and to file such Form S-8 with the
Securities and Exchange Commission.
/s/ Lawrence A. Skantz
------------------------
Director
Witness:
/s/ Sylvia Mitchell
- -------------------------
Date: May 13, 1996
<PAGE>
