<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1996
REGISTRATION NO. 333-03813
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------------------------
HAYES WHEELS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 13-3384636
(State of Incorporation) 38481 HURON RIVER DRIVE (IRS Employer Identification No.)
ROMULUS, MICHIGAN 48174
(313) 941-2000
</TABLE>
(Address including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------------
HAYES WHEELS INTERNATIONAL-CALIFORNIA, INC.
(Exact name of registrant as specified in its charter)
------------------------------------
<TABLE>
<S> <C> <C>
DELAWARE 33-0042337
(State of Incorporation) 14500 FIRESTONE BLVD. (IRS Employer Identification No.)
LA MIRADA, CALIFORNIA
(714) 994-0150
</TABLE>
(Address including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------------
HAYES WHEELS INTERNATIONAL-GEORGIA, INC.
(Exact name of registrant as specified in its charter)
------------------------------------
<TABLE>
<S> <C> <C>
DELAWARE 58-2046122
(State of Incorporation) 1215 PALMOUR DRIVE (IRS Employer Identification No.)
GAINESVILLE, GEORGIA 30501
(770) 535-6783
</TABLE>
(Address including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------------
HAYES WHEELS INTERNATIONAL-INDIANA, INC.
(Exact name of registrant as specified in its charter)
------------------------------------
<TABLE>
<S> <C> <C>
DELAWARE 62-1240825
(State of Incorporation) 1870 RIVERFORK DRIVE (IRS Employer Identification No.)
HUNTINGTON, INDIANA 46750
(219) 356-7001
</TABLE>
(Address including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------------
HAYES WHEELS INTERNATIONAL-MEXICO, INC.
(Exact name of registrant as specified in its charter)
------------------------------------
<TABLE>
<S> <C> <C>
DELAWARE 38-3281831
(State of Incorporation) 38481 HURON RIVER DRIVE (IRS Employer Identification No.)
ROMULUS, MICHIGAN 48174
(313) 941-2000
</TABLE>
(Address including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------------
HAYES WHEELS INTERNATIONAL-MICHIGAN, INC.
(Exact name of registrant as specified in its charter)
------------------------------------
<TABLE>
<S> <C> <C>
MICHIGAN 38-1799246
(State of Incorporation) 2440 HIGHLAND ROAD (IRS Employer Identification No.)
HOWELL, MICHIGAN 48843
(517) 546-3441
</TABLE>
(Address including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------------
DANIEL M. SANDBERG, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
HAYES WHEELS INTERNATIONAL, INC.
38481 HURON RIVER DRIVE
ROMULUS, MICHIGAN 48174
(313) 941-2000
(Name, addresses and telephone numbers, including area codes, of agents for
service of process)
------------------------------------
Copies to:
<TABLE>
<S> <C> <C>
ROBERT B. PINCUS, ESQ. LOUIS B. GOLDMAN, ESQ. ROGER MELTZER, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM ALTHEIMER & GRAY CAHILL GORDON & REINDEL
ONE RODNEY SQUARE, P.O. BOX 636 10 SOUTH WACKER DRIVE, SUITE 4000 80 PINE STREET
WILMINGTON, DELAWARE 19899 CHICAGO, ILLINOIS 60606 NEW YORK, NEW YORK 10005
(302) 651-3000 (312) 715-4000 (212) 701-3000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered to
dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with this offering other than
underwriting discounts and commissions are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................................ $86,207
NASD filing fee.................................................................... 25,500
Blue Sky fees and expenses......................................................... *
Accounting fees and expenses....................................................... *
Legal fees and expenses............................................................ *
Trustee's fees and expenses........................................................ *
Printing........................................................................... *
Miscellaneous...................................................................... *
-------
Total............................................................................ $ *
=======
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Set forth below is a description of certain provisions of the By-laws (the
"By-laws") of the Company and the General Corporation Law of the State of
Delaware (the "DGCL"), as such provisions relate to the indemnification of the
directors and officers of the Company. This description is intended only as a
summary and is qualified in its entirety by reference to the Restated
Certificate of Incorporation, the By-laws and the DGCL.
Section 145 of the General Corporation Law of Delaware empowers a
corporation to indemnify any person who was or is a party or witness 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 reasons of the
fact that he or she 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 or enterprise.
Depending on the character of the proceeding, a corporation may indemnify
against expenses, costs and fees (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding if the person indemnified acted in good
faith and in a manner he or she 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 or her conduct was
unlawful. If the person indemnified is not wholly successful in such action,
suit or proceeding, but is successful, on the merits or otherwise, in one or
more but less than all claims, issues or matters in such proceeding, he or she
may be indemnified against expenses actually and reasonably incurred in
connection with each successfully resolved claim, issue or matter. In the case
of an action or suit by or in the right of the corporation, no indemnification
may be made in respect to 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 was
brought, shall determine that, despite the adjudication of liability, such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper. Section 145 provides that, to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to above or in the defense of
any claim, issue or manner therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
The Company's By-laws provide for indemnification by the Company of its
directors and officers to the full extent permitted by the DGCL. Pursuant to
Section 145 of the DGCL, the Company will purchase
II-1
<PAGE> 3
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this Registration
Statement.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.+
2.1 Agreement and Plan of Merger, dated as of March 28, 1996, by and between Hayes Wheels
International, Inc. and MWC Holdings, Inc. (incorporated by reference to Exhibit 2 of
the Current Report on Form 8-K, dated March 28, 1996, of Hayes Wheels International,
Inc.).
4.1 Indenture, dated as of November 15, 1992, between Hayes Wheels International, Inc.
and Manufacturers and Traders Trust Company, as Trustee, relating to 9 1/4% Senior
Notes due 2002, including the form of Note therein (incorporated by reference to
Exhibit 4.2 of the Form 10-K for the year ended January 31, 1993 of Hayes Wheels
International, Inc. (File No. 1-11592)).
4.2 Indenture, between Hayes Wheels International, Inc. and Comerica Bank, as Trustee,
relating to % Senior Subordinated Notes due 2006, including the form of Note
therein.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom.*
10.1 Credit Agreement, dated as of December 15, 1992, and amended and restated as of
November 30, 1993, June 10, 1994 and March 24, 1995, between Hayes Wheels
International, Inc., the Subsidiary Guarantors (as defined therein), the Banks named
on the signature pages thereof, The Chase Manhattan Bank (National Association) as
Agent, and the Bank of Nova Scotia, as Co-Agent (incorporated by reference to Exhibit
4.4 of the Form 10-K for the year ended January 31, 1995 of Hayes Wheels
International, Inc. (File No. 1-11592)).
10.2 Form of Subscription Agreement, between Hayes Wheels International, Inc. and the New
Investors (incorporated by reference to Exhibit 10.1 of the Current Report on Form
8-K, dated March 28, 1996, of Hayes Wheels International, Inc.).
12.1 Calculation of Ratios of Earnings to Fixed Charges.+
23.1 Consent of KMPG Peat Marwick LLP.+
23.2 Consent of Ernst Young LLP.+
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom (included in its opinion filed as
Exhibit 5.1 hereto).*
23.4 Consent of Houlihan Lokey Howard & Zukin, Inc.+
24.1 Powers of Attorney.+
25.1 Statement of Eligibility of Trustee on Form T-1.+
</TABLE>
- ---------------
* To be filed by amendment.
+ Previously filed.
(b) No Financial Statement Schedules are required to be filed as part of
this Registration Statement.
II-2
<PAGE> 4
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933:
(1) each filing of the Registrant pursuant to Section 13(a) or 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;
(2) the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this Registration Statement as of the time it was declared effective;
and
(3) each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(b) 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 identification
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.
II-3
<PAGE> 5
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-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Romulus, State of Michigan, on this
19th day of June 1996.
HAYES WHEELS INTERNATIONAL, INC.
By: /s/ WILLIAM D. SHOVERS*
--------------------------------------
Name: William D. Shovers
Title: Vice President -- Finance
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ---------------------------------- -------------
<C> <S> <C>
/s/ JOHN E. UTLEY* Chairman of the Board of June 19, 1996
- ------------------------------------- Directors; Director
John E. Utley
/s/ RANKO CUCUZ* President and Chief Executive June 19, 1996
- ------------------------------------- Officer (Principal Executive
Ranko Cucuz Officer); Director
/s/ WILLIAM D. SHOVERS* Chief Financial Officer (Principal June 19, 1996
- ------------------------------------- Accounting Officer and Principal
William D. Shovers Financial Officer)
/s/ J. ANTHONY GILROY* Director June 19, 1996
- -------------------------------------
J. Anthony Gilroy
/s/ JOHN S. RODEWIG* Director June 19, 1996
- -------------------------------------
John S. Rodewig
/s/ KENNETH L. WAY* Director June 19, 1996
- -------------------------------------
Kenneth L. Way
</TABLE>
*By: /s/ BARRY MILLER
- --------------------------------
Barry Miller
Pursuant to power of attorney
filed as Exhibit 24.1 to the
Registration Statement.
II-4
<PAGE> 6
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-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Romulus, State of Michigan, on this
19th day of June 1996.
HAYES WHEELS INTERNATIONAL --
CALIFORNIA, INC.
By: /s/ WILLIAM D. SHOVERS*
--------------------------------------
Name: William D. Shovers
Title: Vice President -- Finance
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ---------------------------------- -------------
<C> <S> <C>
/s/ RANKO CUCUZ* Chairman of the Board of June 19, 1996
- ------------------------------------- Directors; Director
Ranko Cucuz
/s/ RONALD KOLAKOWSKI* President (Principal Executive June 19, 1996
- ------------------------------------- Officer); Director
Ronald Kolakowski
/s/ WILLIAM D. SHOVERS* Vice President -- Finance June 19, 1996
- ------------------------------------- (Principal Accounting Officer and
William D. Shovers Principal Financial Officer);
Director
</TABLE>
*By: /s/ BARRY MILLER
- --------------------------------
Barry Miller
Pursuant to power of attorney
filed as Exhibit 24.1 to the
Registration Statement.
II-5
<PAGE> 7
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-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Romulus, State of Michigan, on this
19th day of June 1996.
HAYES WHEELS INTERNATIONAL--
GEORGIA, INC.
By: /s/ WILLIAM D. SHOVERS*
----------------------------------
Name: William D. Shovers
Title: Vice President -- Finance
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ---------------------------------- -------------
<C> <S> <C>
/s/ RANKO CUCUZ* Chairman of the Board of June 19, 1996
- ------------------------------------- Directors; Director
Ranko Cucuz
/s/ RONALD KOLAKOWSKI* President (Principal Executive June 19, 1996
- ------------------------------------- Officer); Director
Ronald Kolakowski
/s/ WILLIAM D. SHOVERS* Vice President -- Finance June 19, 1996
- ------------------------------------- (Principal Accounting Officer and
William D. Shovers Principal Financial Officer);
Director
</TABLE>
*By: /s/ BARRY MILLER
---------------------------------
Barry Miller
Pursuant to power of attorney
filed as Exhibit 24.1 to the
Registration Statement.
II-6
<PAGE> 8
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-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Romulus, State of Michigan, on this
19th day of June 1996.
HAYES WHEELS INTERNATIONAL--
INDIANA, INC.
By: /s/ WILLIAM D. SHOVERS*
------------------------------
Name: William D. Shovers
Title: Vice President -- Finance
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ---------------------------------- -------------
<S> <C> <C>
/s/ RANKO CUCUZ* Chairman of the Board of June 19, 1996
- ------------------------------------- Directors; Director
Ranko Cucuz
/s/ RONALD KOLAKOWSKI* President (Principal Executive June 19, 1996
- ------------------------------------- Officer); Director
Ronald Kolakowski
/s/ WILLIAM D. SHOVERS* Vice President -- Finance June 19, 1996
- ------------------------------------- (Principal Accounting Officer and
William D. Shovers Principal Financial Officer);
Director
</TABLE>
*By: /s/ BARRY MILLER
---------------------------------
Barry Miller
Pursuant to power of attorney
filed as Exhibit 24.1 to the
Registration Statement.
II-7
<PAGE> 9
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-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Romulus, State of Michigan, on this
19th day of June 1996.
HAYES WHEELS INTERNATIONAL --
MEXICO, INC.
By: /s/ WILLIAM D. SHOVERS*
---------------------------------
Name: William D. Shovers
Title: Vice President -- Finance
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ---------------------------------- -------------
<S> <C> <C>
/s/ RANKO CUCUZ* Chairman of the Board of June 19, 1996
- ------------------------------------- Directors; President and Chief
Ranko Cucuz Executive Officer (Principal
Executive Officer); Director
/s/ WILLIAM LINSKI* Chief Operating Officer June 19, 1996
- -------------------------------------
William Linski
/s/ WILLIAM D. SHOVERS* Vice President -- Finance June 19, 1996
- ------------------------------------- (Principal Accounting Officer and
William D. Shovers Principal Financial Officer);
Director
/s/ DANIEL M. SANDBERG* Director June 19, 1996
- -------------------------------------
Daniel M. Sandberg
</TABLE>
*By: /s/ BARRY MILLER
---------------------------------
Barry Miller
Pursuant to power of attorney
filed as Exhibit 24.1 to the
Registration Statement.
II-8
<PAGE> 10
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-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Romulus, State of Michigan, on this
19th day of June 1996.
HAYES WHEELS INTERNATIONAL--
MICHIGAN, INC.
By: /s/ WILLIAM D. SHOVERS*
----------------------------------
Name: William D. Shovers
Title: Vice President -- Finance
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ---------------------------------- -------------
<S> <C> <C>
/s/ RANKO CUCUZ* Chairman of the Board of June 19, 1996
- ------------------------------------- Directors; Director
Ranko Cucuz
/s/ RONALD KOLAKOWSKI* President (Principal Executive June 19, 1996
- ------------------------------------- Officer); Director
Ronald Kolakowski
/s/ WILLIAM D. SHOVERS* Vice President -- Finance June 19, 1996
- ------------------------------------- (Principal Accounting Officer and
William D. Shovers Principal Financial Officer);
Director
</TABLE>
*By: /s/ BARRY MILLER
---------------------------------
Barry Miller
Pursuant to power of attorney
filed as Exhibit 24.1 to the
Registration Statement.
II-9
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- ------- ----------- ----------
<S> <C> <C>
1.1 Form of Underwriting Agreement.+............................................
2.1 Agreement and Plan of Merger, dated as of March 28, 1996, by and between
Hayes Wheels International, Inc. and MWC Holdings, Inc. (incorporated by
reference to Exhibit 2 of the Current Report on Form 8-K, dated March 28,
1996, of Hayes Wheels International, Inc.)..................................
4.1 Indenture, dated as of November 15, 1992, between Hayes Wheels
International, Inc. and Manufacturers and Traders Trust Company, as Trustee
($100,000,000 principal amount of 9 1/4% Senior Notes due 2002), including
all exhibits thereto (incorporated by reference to Exhibit 4.2 of the Form
10-K for the year ended January 31, 1993 of Hayes Wheels International, Inc.
(File No. 1-11592)).........................................................
4.2 Indenture between Hayes Wheels International, Inc. and Comerica Bank, as
Trustee relating to % Senior Subordinated Notes due 2006, including the
form of Note therein........................................................
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom.*...........................
10.1 Credit Agreement, dated as of 15, 1992, and amended and restated as of
November 30, 1993, June 10, 1994 and March 24, 1995, between Hayes Wheels
International, Inc., the Subsidiary Guarantors (as defined therein), the
Banks named on the signature pages thereof, The Chase Manhattan Bank
(National Association) as Agent, and the Bank of Nova Scotia, as Co-Agent
(incorporated by reference to Exhibit 4.4 of the Form 10-K for the year
ended January 31, 1995 of Hayes Wheels International, Inc. (File No.
1-11592))...................................................................
10.2 Form of Subscription Agreement, between Hayes Wheels International, Inc. and
the New Investors (incorporated by reference to Exhibit 10.1 of the Current
Report on Form 8-K, dated March 28, 1996, of Hayes Wheels International,
Inc.).......................................................................
12.1 Calculation of Ratios of Earnings to Fixed Charges.+........................
23.1 Consent of KMPG Peat Marwick LLP+...........................................
23.2 Consent of Ernst Young LLP+.................................................
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom (included in its opinion
filed as Exhibit 5.1 hereto).*..............................................
23.4 Consent of Houlihan Lokey Howard & Zukin, Inc.+.............................
24.1 Powers of Attorney.+........................................................
25.1 Statement of Eligibility of Trustee on Form T-1.+...........................
</TABLE>
- ---------------
* To be filed by amendment.
+ Previously filed.
<PAGE> 1
EXHIBIT 4.2
HAYES WHEELS INTERNATIONAL, INC.
THE GUARANTORS,
and
COMERICA BANK, as Trustee
---------------------
INDENTURE
Dated as of July [ ], 1996
---------------------
$250,000,000
[ ]% Senior Subordinated Notes due 2006
<PAGE> 2
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;
12.02
(b)(1) 7.10
(b)(9) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06
(c) 12.02
(d) 7.06
314(a) 4.02; 4.04
12.02
(b) N.A.
(c)(1) 12.04; 12.05
(c)(2) 12.04; 12.05
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01; 7.02
(b) 7.05; 12.02
(c) 7.01
(d) 6.05; 7.01;
7.02
(e) 6.11
316(a) (last sentence) 12.06
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) 8.02
(b) 6.07
(c) 8.04
317(a)(1) 6.08
(a)(2) 6.09
(b) 7.12
318(a) 12.01
- ---------------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
Section 1.01. Definitions
Section 1.02. Other Definitions
Section 1.03. Incorporation by Reference of Trust
Indenture Act
Section 1.04. Rules of Construction
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating
Section 2.02. Execution and Authentication
Section 2.03. Registrar and Paying Agent
Section 2.04. Paying Agent To Hold Assets in Trust
Section 2.05. Noteholder Lists
Section 2.06. Transfer and Exchange
Section 2.07. Replacement Notes
Section 2.08. Outstanding Notes
Section 2.09. Temporary Notes
Section 2.10. Cancellation
Section 2.11. Defaulted Interest
Section 2.12. Deposit of Moneys
Section 2.13. CUSIP Number
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee
Section 3.02. Selection by Trustee of Notes To Be
Redeemed
Section 3.03. Notice of Redemption
Section 3.04. Effect of Notice of Redemption
Section 3.05. Deposit of Redemption Price
Section 3.06. Notes Redeemed in Part
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes
Section 4.02. SEC Reports
Section 4.03. Waiver of Stay, Extension or Usury
Laws
Section 4.04. Compliance Certificate
Section 4.05. Payment of Taxes and Other Claims
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Section 4.06. Maintenance of Properties and
Insurance
Section 4.07. Compliance with Laws
Section 4.08. Corporate Existence
Section 4.09. Maintenance of Office or Agency
Section 4.10. Limitation on Additional Indebtedness
Section 4.11. Limitation on Foreign Indebtedness
Section 4.12. Limitation on Common Stock of
Subsidiaries
Section 4.13. Limitation on Restricted Payments
Section 4.14. Limitation on Other Senior
Subordinated Debt
Section 4.15. Limitation on Certain Asset Sales
Section 4.16. Limitation on Transactions with
Affiliates
Section 4.17. Limitations on Liens
Section 4.18. Limitations on Creation of
Subsidiaries
Section 4.19. Payments for Consent
Section 4.20. Change of Control
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger
and Sale of Assets
Section 5.02. Successor Person Substituted
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default
Section 6.02. Acceleration
Section 6.03. Other Remedies
Section 6.04. Waiver of Past Defaults and Events of
Default
Section 6.05. Control by Majority
Section 6.06. Limitation on Suits
Section 6.07. Rights of Holders To Receive Payment
Section 6.08. Collection Suit by Trustee
Section 6.09. Trustee May File Proofs of Claim
Section 6.10. Priorities
Section 6.11. Undertaking for Costs
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee
Section 7.02. Rights of Trustee
Section 7.03. Individual Rights of Trustee
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Section 7.04. Trustee's Disclaimer
Section 7.05. Notice of Defaults
Section 7.06. Reports by Trustee to Holders
Section 7.07. Compensation and Indemnity
Section 7.08. Replacement of Trustee
Section 7.09. Successor Trustee by Consolidation,
Merger or Conversion
Section 7.10. Eligibility; Disqualification
Section 7.11. Preferential Collection of Claims
Against Company
Section 7.12. Paying Agents
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders
Section 8.02. With Consent of Holders
Section 8.03. Compliance with Trust Indenture Act
Section 8.04. Revocation and Effect of Consents
Section 8.05. Notation on or Exchange of Notes
Section 8.06. Trustee To Sign Amendments, etc.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture
Section 9.02. Legal Defeasance
Section 9.03. Covenant Defeasance
Section 9.04. Conditions to Defeasance or Covenant
Defeasance
Section 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Other Miscellaneous Provisions
Section 9.06. Reinstatement
Section 9.07. Moneys Held by Paying Agent
Section 9.08. Moneys Held by Trustee
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee
Section 10.02. Execution and Delivery of Guarantees
Section 10.03. Limitation of Guarantee
Section 10.04. Additional Guarantors
Section 10.05. Release of Guarantor
Section 10.06. Guarantee Obligations Subordinated to
Guarantor Senior Indebtedness
Section 10.07. Payment Over of Proceeds upon
Dissolution, etc., of a Guarantor
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Section 10.08. Suspension of Guarantee Obligations
When Guarantor Senior Indebtedness in
Default
Section 10.09. Subrogation to Rights of Holders of
Guarantor Senior Indebtedness
Section 10.10. Guarantee Subordination Provisions
Solely To Define Relative Rights
Section 10.11. Application of Certain Article 11
Provisions
ARTICLE 11
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior
Indebtedness
Section 11.02. Payment Over of Proceeds upon
Dissolution, etc.
Section 11.03. Suspension of Payment When Senior
Indebtedness in Default
Section 11.04. Trustee's Relation to Senior
Indebtedness
Section 11.05. Subrogation to Rights of Holders of
Senior Indebtedness
Section 11.06. Provisions Solely To Define Relative
Rights
Section 11.07. Trustee To Effectuate Subordination
Section 11.08. No Waiver of Subordination Provisions
Section 11.09. Notice to Trustee
Section 11.10. Reliance on Judicial Order or
Certificate of Liquidating Agent
Section 11.11. Rights of Trustee as a Holder of
Senior Indebtedness; Preservation
of Trustee's Rights
Section 11.12. Article Applicable to Paying Agents
Section 11.13. No Suspension of Remedies
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls
Section 12.02. Notices
Section 12.03. Communications by Holders with Other
Holders
Section 12.04. Certificate and Opinion as to
Conditions Precedent
Section 12.05. Statements Required in Certificate
and Opinion
Section 12.06. When Treasury Notes Disregarded
Section 12.07. Rules by Trustee and Agents
Section 12.08. Business Days; Legal Holidays
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Section 12.09. Governing Law
Section 12.10. No Adverse Interpretation of Other
Agreements
Section 12.11. No Recourse Against Others
Section 12.12. Successors
Section 12.13. Multiple Counterparts
Section 12.14. Table of Contents, Headings, etc.
Section 12.15. Separability
EXHIBITS
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Exhibit A. Form of Note A-1
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<PAGE> 8
INDENTURE, dated as of July [ ], 1996, among HAYES WHEELS INTERNATIONAL,
INC., a Delaware corporation, as Issuer (the "Company"), the GUARANTORS (as
hereinafter defined), and COMERICA BANK, a Michigan banking corporation, as
Trustee (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 [ ]% Senior
Subordinated Notes due 2006 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or is merged or consolidated with or into the Company or a
Restricted Subsidiary or assumed in connection with the acquisition of assets
from such Person.
"Adjusted EBITDA" means, for any Person, for any period, the EBITDA of
such Person, plus any amounts excluded from the calculation of the Consolidated
Net Income of such Person pursuant to clause (b) of the definition thereof.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser of
the amount by which (x) the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities (including, without limitation, any guarantees of Senior
Indebtedness)), but excluding liabilities under the Guarantee, of such
Guarantor at such date and (y) the present fair salable 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 other fixed and contingent liabilities
(including, without limitation, any guarantees of Senior Indebtedness)) and
after giving effect to any collection from any Subsidiary of such Guarantor in
respect of the obligations of such Subsidiary under the Guarantee), excluding
Indebtedness in respect of the Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person which directly
or indirectly through one or more intermediaries controls, or is controlled by,
or is under common
<PAGE> 9
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control with, such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by," and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Argosy" means CIBC WG Argosy Merchant Fund 2, L.L.C.
"Asset Sale" means the sale, transfer or other disposition in any single
transaction or series of related transactions of (a) any Capital Stock of or
other equity interest in any Restricted Subsidiary of the Company, (b) all or
substantially all of the assets of the Company or of any Restricted Subsidiary
thereof, (c) real property or (d) all or substantially all of the assets of any
business, owned by the Company or any Restricted Subsidiary thereof, or a
division, line of business or comparable business segment of the Company or any
Restricted Subsidiary thereof; provided that Asset Sales shall not include (i)
sales, leases, conveyances, transfers or other dispositions to the Company or
to a Restricted Subsidiary or to any other Person if after giving effect to
such sale, lease, conveyance, transfer or other disposition such other Person
becomes a Restricted Subsidiary, (ii) leases, conveyances or other transfers by
the Company or a Restricted Subsidiary of Property to any Person as an
Investment in such Person provided that the Company or such Restricted
Subsidiary receives consideration at the time of such lease, conveyance or
other transfer at least equal to the fair market value of such Property and
such Investment is included in clause (v) of the second paragraph of Section
4.13.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Company or any Restricted Subsidiary from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such
Asset Sale, (b) payment of all brokerage commissions, underwriting and other
fees and expenses related to such Asset Sale, (c) provision for minority
interest holders in any Restricted Subsidiary as a result of such Asset Sale
and (d) deduction of appropriate amounts to be provided by the Company or a
Restricted Subsidiary as a reserve, in accordance with GAAP, against any
liabilities
<PAGE> 10
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associated with the assets sold or disposed of in such Asset Sale and retained
by the Company or a Restricted Subsidiary after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such Asset Sale,
and (ii) promissory notes and other non-cash consideration received by the
Company or any Restricted Subsidiary from such Asset Sale or other disposition
upon the liquidation or conversion of such notes or non-cash consideration
into cash.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, as at the time of determination, the present value of the
notes (discounted according to GAAP at the cost of indebtedness implied in the
lease) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale and Lease-Back Transaction
(including any period for which such lease has been extended).
"Autokola" means Hayes Wheels Autokola NH, a.s.
"Available Asset Sale Proceeds" means, with respect to any Asset Sale, the
aggregate Asset Sale Proceeds from such Asset Sale that have not been applied
in accordance with clause (iii)(A) or (iii)(B) of Section 4.15(a) and which
have not been the basis for an Excess Proceeds Offer in accordance with clause
(iii)(C) of such Section 4.15(a).
"Board of Directors" means the board of directors of the Company or a
Guarantor, as appropriate, or any committee authorized to act therefor.
"Board Resolution" means a copy of a resolution certified pursuant to an
Officers' Certificate to have been duly adopted by the Board of Directors of
the Company or a Guarantor, as appropriate, and to be in full force and effect,
and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all shares or
other equivalents (however designated) of capital stock, partnership interests
or any other participation, right or other interest in the nature of an equity
interest in such Person or any option, warrant or other security convertible
into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with
<PAGE> 11
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GAAP, and the amount of such Indebtedness shall be the capitalized amount of
such obligations determined in accordance with GAAP.
"Change of Control" of the Company will be deemed to have occurred at such
time as (i) any Person (including a Person's Affiliates and associates), other
than a Permitted Holder, becomes the beneficial owner (as defined under Rule
13d-3 or any successor rule or regulation promulgated under the Exchange Act)
of 50% or more of the total voting power of the Company's Common Stock, (ii)
any Person (including a Person's Affiliates and associates), other than a
Permitted Holder, becomes the beneficial owner of more than 30% of the total
voting power of the Company's Common
Stock, and either (A) the Permitted Holders beneficially own, in the aggregate,
a lesser percentage of the total voting power of the Common Stock of the
Company than such other Person and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Board of Directors of the Company or (B) JLL is the beneficial owner of
less than 20% of the total voting power of the Company's Common Stock, (iii)
there shall be consummated any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
the Common Stock of the Company would be converted into cash, securities or
other property, other than a merger or consolidation of the Company in which
the holders of the Common Stock of the Company outstanding immediately prior to
the consolidation or merger hold, directly or indirectly, at least a majority
of the Common Stock of the surviving corporation immediately after such
consolidation or merger or (iv) 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 has been approved by 66 2/3% of the directors then still in office
who either were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute a
majority of the Board of Directors of the Company.
"Chase" means Chase Equity Associates, L.P.
"Common Stock" of any Person means all Capital Stock of such Person that
is generally entitled to (i) vote in the election of directors of such Person
or (ii) if such Person is not a corporation, vote or otherwise participate in
the selection of the governing body, partners, managers or others that will
control the management and policies of such Person.
<PAGE> 12
-5-
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor and any other obligor on the
Notes.
"Company Request" means any written request signed in the name of the
Company by the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer or the Treasurer and attested to by the Secretary or
any Assistant Secretary of the Company.
"Consolidated Fixed Charges" means, with respect to any Person, the sum of
a Person's (i) Consolidated Interest Expense, plus (ii) the product of (x) the
aggregate amount of all dividends paid on Disqualified Capital Stock of the
Company or on each series of preferred stock of each Subsidiary of such Person
(other than dividends paid or payable in additional shares of preferred stock
or to the Company or any of its Wholly Owned Subsidiaries) times (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective combined federal, state and local tax rate of
such Person (expressed as a decimal), in each case, for such four-quarter
period.
"Consolidated Interest Expense" means, with respect to any Person, for any
period and without duplication, the aggregate amount of interest which, in
conformity with GAAP, would be set forth opposite the caption "interest
expense" or any like caption on an income statement for such Person and its
Subsidiaries on a consolidated basis (including, but not limited to, (i)
imputed interest included in Capitalized Lease Obligations, (ii) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, (iii) net payments made in
connection with Interest Rate Agreements, (iv) the interest portion of any
deferred payment obligation, (v) amortization of discount or premium, if any,
and (vi) all other non-cash interest expense (other than interest amortized to
cost of sales)) plus, all net capitalized interest for such period and all
interest paid under any guarantee of Indebtedness (including a guarantee of
principal, interest or any combination thereof) of any Person, and minus, (i)
net payments received in connection with Interest Rate Agreements and (ii)
amortization of deferred financing costs and expenses.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the net income (before preferred stock dividends) of
such Person and its Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP; provided, however, that there shall be
excluded from
<PAGE> 13
-6-
Consolidated Net Income (a) the net income of any Person which
under GAAP is not consolidated with the Person in question other than the
amount of dividends or distributions paid to the Person in question or the
Subsidiary, (b) the net income of any Subsidiary of the Person in question,
other than a Domestic Subsidiary, that is subject to any restriction or
limitation on the payment of dividends or the making of other distributions
(other than pursuant to the Notes or this Indenture) to the extent of such
restriction or limitation (provided that if any such restriction or limitation
by its terms takes effect upon the occurrence of a default or an event of
default, such exclusion shall become effective only upon the occurrence and
during the continuance of such default or event of default), (c) the net income
of any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition and (d) any net gain or loss resulting
from a sale of Property by the Person in question or any of its Subsidiaries
other than in the ordinary course of business, (e) extraordinary gains and
losses, (f) non-recurring gains, non-cash, non-recurring losses and charges
(including restructuring charges and costs) and, in the case of the Company,
cash restructuring charges for any period prior to July 31, 1998, (g) any
amounts received by the Company or a Restricted Subsidiary which are used to
offset Investments pursuant to the terms of clause (ii) of the definition of
"Net Investments," and (h) in the case of clauses (d), (e) and (f), the
associated tax effects during such period.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 411 W.
Lafayette, Detroit, Michigan 48226-3461.
"Credit Agreement" means the Credit Agreement, to be dated as of a date on
or prior to the Issue Date, among the Company, Canadian Imperial Bank of
Commerce, as administrative agent, Merrill Lynch Capital Corporation, as
documentation agent, and the lenders from time to time parties thereto, as such
agreement may be amended, modified or supplemented from time to time or
deferred, renewed, extended, refunded, refinanced, restructured or replaced
from time to time in whole or in part (whether with the original administrative
agent and lenders or other agents and lenders or otherwise, and whether
provided under the original Credit Agreement or other credit agreements or
otherwise).
"Default" means any event that is, or with the passing of time or giving
of notice or both would be, an Event of Default.
<PAGE> 14
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"Designated Senior Indebtedness" as to the Company or any Guarantor, as
the case may be, means any Senior Indebtedness (a) under or in respect of the
Credit Agreement, or (b) which at the time of determination exceeds
$25,000,000 in aggregate principal amount (or accreted value in the case of
Indebtedness issued at a discount) outstanding or available under a committed
facility, and (x) which is specifically designated in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" by such Person and
(y) as to which the Trustee has been given written notice of such designation.
"Disqualified Capital Stock" means any Capital Stock of the Company or a
Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness. Without limitation of the foregoing, Disqualified Capital Stock
shall be deemed to include any Preferred Stock of a Restricted Subsidiary of
the Company or the Company under, which by agreement or otherwise, such
Restricted Subsidiary or the Company is obligated to pay current dividends or
distributions in cash during the period prior to the maturity date
of the Notes; provided, however, that Preferred Stock of the Company or any
Restricted Subsidiary thereof that is issued with the benefit of provisions
requiring a change of control offer to be made for such Preferred Stock in the
event of a change of control of the Company or Restricted Subsidiary, which
provisions have substantially the same effect as the provisions described in
Section 4.20, shall not be deemed to be Disqualified Capital Stock solely by
virtue of such provisions; and provided, further, that Capital Stock owned by
the Company or any Restricted Subsidiary shall not constitute Disqualified
Capital Stock.
"Domestic" with respect to any Person shall mean a Person whose
jurisdiction of incorporation or formation is the United States, any state
thereof or the District of Columbia.
"EBITDA" means, for any Person, for any period, an amount equal to (a) the
sum of (i) Consolidated Net Income for such period, plus (ii) the provision for
taxes for such period based on income or profits to the extent such income or
profits were included in computing Consolidated Net Income and any provision
for taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such period, plus (iv) depreciation for such
period, plus (v) amortization for such period
<PAGE> 15
-8-
(including the amortization of deferred financing costs and expenses), plus
(vi) any other non-cash items (including minority interests) reducing
Consolidated Net Income for such period, plus (vii) non-recurring losses and
charges (including restructuring charges and costs) whether cash or non-cash
for such period to the extent not included in the calculation of Consolidated
Net Income, minus (viii) all non-cash items increasing Consolidated Net Income
for such period, all for such Person and its Subsidiaries determined on a
consolidated basis in accordance with GAAP, except that with respect to the
Company each of the foregoing items shall be determined on a consolidated basis
with respect to the Company and its Restricted Subsidiaries only.
"Equity Offering" means offering by the Company of shares of its common
stock (however designated and whether voting or ) and any and all rights,
warrants or options to acquire such common stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fixed Charge Coverage Ratio" of any Person means, with respect to any
determination date, the ratio of (i) EBITDA for such Person's prior four full
fiscal quarters for which financial results have been reported immediately
preceding the determination date, to (ii) Consolidated Fixed Charges of such
Person.
"Foreign EBITDA" means for any period, the aggregate of the EBITDA of each
of the Company's Restricted Subsidiaries which are not Guarantors.
"Foreign Interest Expense" means for any period, the aggregate of the
Consolidated Interest Expense of each of the Company's Restricted Subsidiaries
which are not Guarantors.
"GAAP" means generally accepted accounting principles consistently applied
as in effect in the United States from time to time.
"Guarantee" means the guarantee of the Obligations of the Company with
respect to the Notes by each Guarantor pursuant to the terms of Article 10
hereof.
"Guarantor" means (i) each of Hayes Wheels International-California, Inc.,
a Delaware corporation, Hayes Wheels International-Georgia, Inc., a Delaware
corporation, Hayes Wheels International-Indiana, Inc., a Delaware corporation,
Hayes Wheels International-Mexico, Inc., a Delaware corporation, and
<PAGE> 16
-9-
Hayes Wheels International-Michigan, Inc., a Michigan corporation and (ii) each
Restricted Subsidiary of the Company that hereafter becomes a Guarantor
pursuant to Section 10.04, and "Guarantors" means such entities, collectively.
"Guarantor Senior Indebtedness" as to any Guarantor means the principal of
and premium, if any, and interest (including, without limitation, interest
accruing or that would have accrued but for the filing of a bankruptcy,
reorganization or other insolvency proceeding whether or not such interest
constitutes an allowable claim in such proceeding) on, and any and all other
fees, charges, expense reimbursement obligations, indemnities and other amounts
due pursuant to the terms of all agreements, documents and instruments
providing for, creating, securing, guaranteeing or evidencing or otherwise
entered into in connection with, (a) such Guarantor's guarantee of all
obligations, whether outstanding on the Issue Date or thereafter incurred, of
the Company, in each case, owed to lenders under or in respect of the Credit
Agreement, (b) all obligations of such Guarantor with respect to any Interest
Rate Agreement, (c) all obligations of such Guarantor to reimburse any bank or
other person in respect of amounts paid under letters of credit, acceptances or
other similar instruments, (d) all other Indebtedness of such Guarantor which
does not provide that it is to rank pari passu with or subordinate to the
Guarantees and (e) all deferrals, renewals, extensions and refundings,
refundings and restructurings of, and amendments, modifications and supplements
to, any of the Guarantor Senior Indebtedness described above. Notwithstanding
anything to the contrary in the foregoing, Guarantor Senior Indebtedness will
not include (i) Indebtedness of such Guarantor to any of its Subsidiaries, (ii)
Indebtedness represented by the Guarantees, (iii) any Indebtedness which by the
express terms of the agreement or instrument creating, evidencing or governing
the same is junior or subordinate in right of payment to any item of Guarantor
Senior Indebtedness, (iv) any trade payable arising from the purchase of goods
or materials or for services obtained in the ordinary course of business or (v)
Indebtedness incurred in violation of this Indenture.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become
liable in respect of such Indebtedness or other obligation or the recording, as
required pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "incurrence," "incurred,"
"incurrable," and "incurring"
<PAGE> 17
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shall have meanings correlative to the foregoing); provided that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any Person,
any indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
Property (excluding, without limitation, any balances that constitute accounts
payable or trade payables, and other accrued liabilities arising in the
ordinary course of business) if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, and shall also include, to the extent not
otherwise included (i) any Capitalized Lease Obligations, (ii) obligations of
others secured by a Lien to which the property or assets owned or held by such
Person is subject, whether or not the obligation or obligations secured thereby
shall have been assumed, (iii) guarantees of obligations of other Persons which
would be included within this definition for such other Persons (whether or not
such items would appear upon the balance sheet of the guarantor), (iv) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (v) in the case of the
Company, Disqualified Capital Stock and, in the case of any Restricted
Subsidiary, Preferred Stock (vi) obligations of any such Person under any
Interest Rate Agreement (if and to the extent such Interest Rate Agreement
obligations would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP) and (vii) Attributable Indebtedness. The
amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of
all unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation, provided (i) that the amount
outstanding at any time of any Indebtedness issued with original issue discount
is the principal amount of such Indebtedness less the remaining unamortized
portion of the original issue discount of such Indebtedness at such time as
determined in accordance with GAAP and (ii) that Indebtedness shall not include
any liability for Federal, state, local or other taxes. Notwithstanding any
other provision of the foregoing definition, any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary course
of business shall not be deemed to be "Indebtedness" of the Company or any
Restricted
<PAGE> 18
-11-
Subsidiaries for purposes of this definition. Furthermore, guarantees of (or
obligations with respect to letters of credit supporting) Indebtedness and Liens
securing Indebtedness otherwise included in the determination of such amount
shall not also be included.
"Indenture" means this Indenture as amended, restated or supplemented from
time to time.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance, account
receivable, loan or capital contribution to (by means of transfers of property
to others, payments for property or services for the account or use of others
or otherwise), the purchase of any stock, bonds, notes, debentures, partnership
or joint venture interests or other securities of, the acquisition, by purchase
or otherwise, of all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any Person. Investments shall
exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
"Issue Date" means the date the Notes are first issued by the Company and
authenticated by the Trustee under this Indenture.
"JLL" means Joseph Littlejohn & Levy Fund II, L.P.
"Lien" means, with respect to any Property of any Person, any mortgage or
deed of trust, pledge, hypothecation, deposit arrangement, security interest,
lien, charge, encumbrance, preference, priority, or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such Property or assets (including, without limitation, any Capitalized Lease
Obligation, conditional sales, or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Maturity Date" means July 15, 2006.
<PAGE> 19
-12-
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Motor Wheel" means Motor Wheel Corporation, an Ohio corporation, and a
Wholly Owned Subsidiary of MWC Holdings, Inc., a Delaware corporation.
"Net Cash Proceeds" means (a) in the case of any sale of Capital Stock by
the Company, the aggregate net cash proceeds received by the Company, after
payment of expenses, commissions, underwriting discounts and the like incurred
in connection therewith, (b) in the case of any exchange, exercise, conversion
or surrender of outstanding securities of any kind for or into shares of Capital
Stock of the Company which is not Disqualified Capital Stock, the net cash
proceeds received from the sale of such outstanding securities so exchanged,
exercised, converted or surrendered (plus any additional amount required to be
paid in cash by the holder to the Company upon such exchange, exercise,
conversion or surrender, less any and all payments made to the holders, e.g., on
account of fractional shares and less all expenses incurred by the Company in
connection therewith) and (c) in the case of any issuance of any Indebtedness by
the Company or any Restricted Subsidiary, the aggregate net cash proceeds
received by such Person after payment of expenses, commissions, underwriting
discounts and the like incurred in connection therewith.
"Net Investment" means the excess of (i) the aggregate amount of all
Investments in Unrestricted Subsidiaries or joint ventures made by the Company
or any Restricted Subsidiary on or after the Issue Date (in the case of an
Investment made other than in cash, the amount shall be the fair market value of
such Investment as determined in good faith by the Board of Directors of the
Company or such Restricted Subsidiary) over (ii) the sum of (A) the aggregate
amount returned in cash on or with respect to such Investments whether through
interest payments, principal payments, dividends or other distributions or
payments and (B) the Net Cash Proceeds received by the Company or any Restricted
Subsidiary or joint venture from the disposition of all or any portion of such
Investments (other than to a Subsidiary of the Company); provided, however, that
with respect to all Investments made in any Unrestricted Subsidiary or joint
venture the sum of clauses (A) and (B) above with respect to such Investments
shall not exceed the aggregate amount of all such Investments made in such
Unrestricted Subsidiary.
"Nomura" means Nomura Holding America, Inc.
<PAGE> 20
-13-
"Non-Payment Event of Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Notes" means the securities that are issued under this Indenture, as
amended or supplemented from time to time pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any principal,
premium, interest, penalties, fees, indemnifications, reimbursements, damages
and other expenses payable under the documentation governing such Indebtedness.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the Secretary of the
Company or a Guarantor, or any other officer designated by the Board of
Directors, as the case may be.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chief Executive Officer, the President or any Vice President, and
the Chief Financial Officer or any Treasurer of such Person that shall comply
with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel which
counsel is reasonably acceptable to the Trustee.
"Payment Default" means any default, whether or not any requirement for
the giving of notice, the lapse of time or both, or any other condition to such
default becoming an event of default has occurred, in the payment of principal
of (or premium, if any) or interest on or any other amount payable in connection
with Designated Senior Indebtedness.
"Permitted Holders" means, (i) JLL or any other fund controlled by Joseph
Littlejohn & Levy, (ii) TSG, (iii) Argosy, (iv) Nomura and (v) Chase.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Domestic Restricted
Subsidiary arising under or in respect of the Credit Agreement in an
aggregate amount not to exceed $645,000,000, less any mandatory
prepayments actually made thereunder (to the extent, in the case of
payments of revolving credit Indebtedness, that the corresponding
<PAGE> 21
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commitments have been permanently reduced) or scheduled payments actually
made thereunder;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness not covered by any other clause of this
definition which is outstanding on the Issue Date;
(iv) Indebtedness incurred to finance the working capital
requirements of the Western European operations of the Company's
Restricted Subsidiaries pursuant to commitments outstanding on the Issue
Date in an aggregate amount not to exceed $10,000,000 (or, to the extent
non-U.S. dollar denominated, the U.S. dollar equivalent thereof);
(v) Indebtedness of Autokola not to exceed $35,000,000 in principal
amount in the aggregate which is incurred after the Issue Date as a
result of it becoming a Subsidiary of the Company;
(vi) Indebtedness of the Company to any Domestic Restricted
Subsidiary which is a Wholly Owned Subsidiary and Indebtedness of any
Restricted Subsidiary to the Company or another Restricted Subsidiary
provided that in the case of Indebtedness of a Domestic Restricted
Subsidiary such Indebtedness is owed to another Domestic Restricted
Subsidiary;
(vii) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business which
Indebtedness and Capitalized Lease Obligations do not in the aggregate
exceed 5% of the Company's consolidated total assets as of the Company's
most recent quarterly balance sheet;
(viii) Interest Rate Agreements;
(ix) additional Indebtedness of the Company and its Restricted
Subsidiaries not to exceed $50,000,000 in aggregate principal amount
outstanding at any time;
(x) Refinancing Indebtedness; and
(xi) Indebtedness incurred in accordance with Section 4.11.
<PAGE> 22
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"Permitted Investments" means, for any Person, Investments made on or
after the date of this Indenture consisting of:
(i) Investments by the Company, or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by the Company, or by a Restricted Subsidiary
thereof, in a Person, if as a result of such Investment (a) such Person
becomes a Restricted Subsidiary of the Company or (b) such Person is
merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary thereof;
(iv) reasonable and customary loans made to employees not to
exceed $1,000,000 in the aggregate at any one time outstanding;
(v) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are
issued by a third party to the Company or Restricted Subsidiary solely
as partial consideration for the consummation of an Asset Sale;
(vi) Investments in Unrestricted Subsidiaries and joint ventures
permitted under subclause (v) of the second paragraph of Section 4.13;
(vii) Investments received in connection with the bankruptcy or
reorganization of Persons having obligations in favor of the Company or
its Subsidiaries (which obligations were incurred in the ordinary
course), in settlement of such obligations; and
(viii) Investments paid for in Common Stock of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however designated,
which entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation
<PAGE> 23
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proceeds of such Person over the holders of other Capital Stock issued by
such Person.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in
the most recent consolidated balance sheet of such Person and its Subsidiaries
under GAAP.
"Purchase Money Indebtedness" means any Indebtedness incurred in the
ordinary course of business by a Person to finance the cost (including the cost
of construction) of an item of Property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
"Redemption Date" when used with respect to any Note to be redeemed means
the date fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances or
extends any Indebtedness of the Company or its Subsidiaries outstanding on the
Issue Date or other Indebtedness permitted to be incurred by the Company or its
Restricted Subsidiaries pursuant to the terms of this Indenture, but only to the
extent that (i) the Refinancing Indebtedness is subordinated to the Notes to at
least the same extent as the Indebtedness being refunded, refinanced or
extended, if at all, (ii) the Refinancing Indebtedness is scheduled to mature
either (a) no earlier than the Indebtedness being refunded, refinanced or
extended, or (b) after the maturity date of the Notes, (iii) the portion, if
any, of the Refinancing Indebtedness that is scheduled to mature on or prior to
the maturity date of the Notes has a weighted average life to maturity at the
time such Refinancing Indebtedness is incurred that is equal to or greater than
the weighted average life to maturity of the portion of the Indebtedness being
refunded, refinanced or extended that is scheduled to mature on or prior to the
maturity date of the Notes, (iv) such Refinancing Indebtedness is in an
aggregate principal amount that is equal to or less than the sum of (a) the
aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended, (b) the amount of accrued and unpaid interest,
if any, and any necessary premiums (including the amount of any premium
reasonably determined by the Company or the applicable Restricted Subsidiary as
necessary to accomplish such refunding, refinancing or extension) on such
Indebtedness being refunded, refinanced or extended and (c) the amount of
customary fees, expenses and costs related to the incurrence of such Refinancing
Indebtedness, (v) such Refinancing Indebtedness is
<PAGE> 24
-17-
incurred by the same Person that initially incurred the Indebtedness being
refunded, refinanced or extended, except that the Company may incur Refinancing
Indebtedness to refund, refinance or extend Indebtedness of any Wholly Owned
Subsidiary of the Company; provided, however, that any non-Domestic Restricted
Subsidiary may incur Refinancing Indebtedness to refund, refinance or extend
Indebtedness of the Company arising under or in respect of the Credit Agreement
in an aggregate amount not to exceed $20,000,000 outstanding at any time; and
provided, further, that with respect to such Refinancing Indebtedness referred
to in the previous provision, clauses (ii) and (iii) shall not apply, and (vi)
if such Indebtedness was incurred pursuant to Section 4.11(a) and does not
contain any restriction or limitation on the payment of dividends or the making
of other distributions then the Refinancing Indebtedness shall not contain any
such limitation or restriction.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Capital Stock
of the Company or any Restricted Subsidiary of the Company or any payment made
to the direct or indirect holders (in their capacities as such) of Capital
Stock of the Company or any Restricted Subsidiary of the Company (other than
(x) dividends or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Capital Stock), and (y) in the case of
Restricted Subsidiaries of the Company, dividends or distributions payable to
the Company or to a Wholly Owned Subsidiary of the Company), (ii) the purchase,
redemption or other acquisition or retirement for value of any Capital Stock of
the Company or any of its Restricted Subsidiaries (other than Capital Stock
owned by the Company or a Wholly Owned Subsidiary of the Company, excluding
Disqualified Capital Stock), (iii) the purchase, defeasance, repurchase,
redemption or other acquisition or retirement for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment of, or the
making of any principal payment on, any Indebtedness which is subordinated in
right of payment to the Notes other than subordinated Indebtedness acquired in
anticipation of satisfying a
<PAGE> 25
-18-
scheduled sinking fund obligation, principal installment or final maturity (in
each case due within one year of the date of acquisition), (iv) the making of
any Investment or guarantee of any Investment in any Person other than a
Permitted Investment, (v) any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary on the basis of the Net Investment by the Company
therein and (vi) forgiveness of any Indebtedness of an Affiliate of the Company
to the Company or a Restricted Subsidiary. For purposes of determining the
amount expended for Restricted Payments, cash distributed or invested shall be
valued at the face amount thereof and property other than cash shall be valued
at its fair market value determined in good faith by the Board of Directors of
the Company.
"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Unrestricted Subsidiary or any Person that is to become a Subsidiary as a
Restricted Subsidiary if immediately after giving effect to such action (and
treating any Acquired Indebtedness as having been incurred at the time of such
action), the Company could have incurred at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.10.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of the
Company of any real or tangible personal Property, which Property has been or
is to be sold or transferred by the Company or such Restricted Subsidiary to
such Person in contemplation of such leasing.
"S&P" means Standard & Poor's Corporation and its successors.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the
same functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of and premium, if any, and
interest (including, without limitation, interest accruing or that would have
accrued but for the filing of a bankruptcy, reorganization or other insolvency
proceeding whether or not such interest constitutes an allowable claim in such
proceeding) on, and any and all other fees, charges, expense reimbursement
obligations, indemnities and other amounts due
<PAGE> 26
-19-
pursuant to the terms of all agreements, documents and instruments providing
for, creating, securing, guaranteeing or evidencing or otherwise entered into in
connection with (a) all obligations, whether outstanding on the Issue Date or
thereafter incurred, of the Company owed to lenders under or in respect of the
Credit Agreement, (b) all obligations of the Company with respect to any
Interest Rate Agreement, (c) all obligations of the Company to reimburse any
bank or other person in respect of amounts paid under letters of credit,
acceptances or other similar instruments, (d) all other Indebtedness of the
Company which does not provide that it is to rank pari passu with or subordinate
to the Notes and (e) all deferrals, renewals, extensions, refundings,
refinancings and restructurings of, and amendments, modifications and
supplements to, any of the Senior Indebtedness described above. Notwithstanding
anything to the contrary in the foregoing, Senior Indebtedness will not include
(i) Indebtedness of the Company to any of its Subsidiaries, (ii) Indebtedness
represented by the Notes and the Guarantees, (iii) any Indebtedness which by the
express terms of the agreement or instrument creating, evidencing or governing
the same is junior or subordinate in right of payment to any item of Senior
Indebtedness, (iv) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business or (v)
Indebtedness incurred in violation of this Indenture.
"Subsidiary" of any specified Person means any corporation, partnership,
joint venture, association or other business entity, whether now existing or
hereafter organized or acquired (i) in the case of a corporation, of which more
than 50% of the total voting power of the Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named Person or any of its
Subsidiaries; or (ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such first-named Person or any
of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes; provided that Autokola which shall not be
considered a Subsidiary of the Company until such time as the Company acquires a
majority interest therein.
"Temporary Cash Investments" means (i) Investments in marketable, direct
obligations issued or guaranteed by the United States of America, or of any
governmental agency or political subdivision thereof, maturing within 365 days
of the date of purchase; (ii) Investments in demand deposits or certificates of
<PAGE> 27
-20-
deposit issued by a bank organized under the laws of the United States of
America or any state thereof or the District of Columbia, in each case having
capital, surplus and undivided profits totaling more than $500,000,000 and rated
at least A by S&P and A-2 by Moody's, maturing within 365 days of purchase;
(iii) Investments in commercial paper, maturing not more than 180 days after the
date of acquisition, issued by a corporation (other than an Affiliate of the
Company) organized and in existence under the laws of the United States of
America or any foreign country recognized by the United States of America with a
rating at the time as of which any Investment therein is made of "P-1" (or
higher) according to Moody's or "A-1" (or higher) according to S&P, (iv) in the
case of any non-Domestic Restricted Subsidiary, Investments: (a) in direct
obligations of the sovereign nation (or any agency thereof) in which such
non-Domestic Restricted Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation (or
any agency thereof) or (b) of the type and maturity described in clauses (i)
through (iii) above of foreign obligors, which Investments or obligors (of the
parents of such obligors) have ratings described in such clauses or equivalent
ratings from comparable foreign rating agencies or (v) Investments not exceeding
365 days in duration in money market funds that invest substantially all of such
funds' assets in the Investments described in the preceding clauses (i) and
(iv).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section Section
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer trust accounts.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"TSG" means TSG Capital Fund II, L.P.
"Unrestricted Subsidiary" means (a) any Subsidiary of an Unrestricted
Subsidiary and (b) any Subsidiary of the Company which is classified after the
Issue Date as an Unrestricted Subsidiary by a resolution adopted by the Board
of Directors of the Company; provided that a Subsidiary organized or acquired
after the Issue Date may be so classified as an Unrestricted Subsidiary only if
such classification is in compliance with Section 4.13 hereof. The Trustee
shall be given prompt notice by the Company of each resolution adopted by the
Board of Directors of the Company under
<PAGE> 28
-21-
this provision, together with a copy ofeach such resolution adopted.
"U.S. Government Obligations" means direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"Western Europe" means, with respect to any jurisdictional matter, any of
the twelve current member states of the European Community and Switzerland,
Norway, Sweden, Finland, Austria and the Czech Republic (and "Western European"
shall have a meaning correlative to the foregoing).
"Wholly Owned Subsidiary" means any Restricted Subsidiary all of the
outstanding voting securities (other than directors' qualifying shares or
similar requirements of law in respect of non-Domestic Subsidiaries) of which
are owned, directly or indirectly, by the Company.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
<TABLE>
<CAPTION>
TermDefined in Section
----------------------------------------------------------
<S> <C>
"Acquisition" 4.10
"Affiliate Transaction" 4.16
"Bankruptcy Law" 6.01
"Business Day" 12.08
"Change of Control Offer" 4.20
"Change of Control Payment Date" 4.20
"Change of Control Purchase Price" 4.20
"Covenant Defeasance" 9.03
"Custodian" 6.01
"Event of Default" 6.01
"Excess Proceeds Offer" 4.15
"Guarantee Payment Blockage Date" 10.08
"Guarantor Representative 10.08
"Initial Blockage Period" 11.03
"Initial Guarantee Blockage Period" 10.08
"Legal Defeasance" 9.02
"Legal Holiday" 12.08
"Offer Period" 4.15
"Paying Agent" 2.03
"Payment Blockage Period" 11.03
</TABLE>
<PAGE> 29
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"Purchase Date" 4.15
"Registrar" 2.03
"Reinvestment Date" 4.15
"Representative" 11.03
Section 2.03. Incorporation by Reference of Trust
Indenture Act.
---------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the portion of
such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA 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 Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes or the Guarantees.
All other terms used in this Indenture that are defined by
the TIA, defined in the TIA by reference to another statute or defined by SEC
rule have the meanings therein assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular; and
<PAGE> 30
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(5) words used herein implying any gender shall apply
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A which is incorporated in and made part
of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company may use "CUSIP"
numbers in issuing the Notes. The Company shall approve the form of the Notes.
Each Note shall be dated the date of its authentication.
The terms and provisions contained in the Notes and the Guarantee shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Section 2.02 Execution and Authentication.
The Notes shall be executed on behalf of the Company by two Officers of
the Company or an Officer and an Assistant Secretary of the Company. Such
signature may be either manual or facsimile. The Company's seal shall be
impressed, affixed, imprinted or reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until the Trustee manually signs the certificate
of authentication on the Note. Such signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.
The Trustee or an authenticating agent shall authenticate Notes for
original issue in the aggregate principal amount of $250,000,000 upon a
Company Request. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.07 hereof. The
Notes shall be
<PAGE> 31
-24-
issuable only in registered form without coupons and only in denominations of
$1,000 and integral multiples thereof.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same right as an Agent to deal with the Company or
an Affiliate.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency located in the Borough of Manhattan, City of New York, State of New
York or the City of Detroit, State of Michigan where Notes may be presented for
payment ("Paying Agent") and an office or agency where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may have one or more co-registrars and one or more additional paying
agents. Neither the Company nor any Affiliate may act as Paying Agent. The
Company may change any Paying Agent, Registrar or co-registrar without notice to
any Noteholder.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. 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, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee
shall act as such. The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with
the Notes.
Section 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that, subject to Articles 10 and 11, each Paying Agent shall
hold in trust for the benefit of the Holders or the Trustee all assets held by
the Paying Agent for the payment of principal of, or interest on, the Notes
(whether such assets have been distributed to it by the Company or any other
obligor on the Notes), and the Company and the Paying Agent shall notify the
Trustee in writing of any Default by the Company (or any
<PAGE> 32
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other obligor on the Notes) in making any such payment. The Company at any time
may require a Paying Agent to distribute all assets held by it to the Trustee
and account for any assets disbursed and the Trustee may at any time during the
continuance of any Payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the Paying Agent, the
Paying Agent shall have no further liability for such assets.
Section 2.05. Noteholder 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
Noteholders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee as of each Record Date and on or before each related Interest
Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Noteholders.
Section 2.06. Transfer and Exchange.
When a Note is presented to the Registrar with a request to register the
transfer thereof, the Registrar shall register the transfer as requested if the
requirements of applicable law are met and, when Notes are presented to the
Registrar with a request to exchange them for an equal principal amount of
Notes of other authorized denominations, the Registrar shall make the exchange
as requested provided that every Note presented or surrendered for registration
of transfer or exchange shall be duly endorsed, or be accompanied by a
completed form of assignment as provided with such Note or any other written
instrument of transfer in form satisfactory to the Company and the Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing.
To permit transfers and exchanges, upon surrender of any Note for registration
of transfer at the office or agency maintained pursuant to Section 2.03 hereof,
the Company shall execute and the Trustee shall authenticate Notes at the
Registrar's request. Any exchange or transfer shall be without charge, except
that the Company may require payment by the Holder of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation to a
transfer or exchange, but this provision shall not apply to any exchange
pursuant to Sections 2.09, 3.06 or 8.05 hereof. The Registrar shall not be
required to register transfers of Notes or to exchange Notes for a period of 15
days before selection of any Notes to be redeemed. The Registrar shall not be
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required to exchange or register transfers of any Notes called or being called
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note presents evidence to the satisfaction of the Company and the Trustee that
the Note has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Note if the Trustee's
requirements are met. An indemnity bond may be required by the Company or the
Trustee that is sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note, including reasonable
fees and expenses of counsel. Every replacement Note is an additional
obligation of the Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the Trustee
except for those cancelled by it, those delivered to it for cancellation, and
those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding until the
Company and the Trustee receive proof satisfactory to each of them that the
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
If a Paying Agent holds on a Redemption Date or Maturity Date money
sufficient to pay the principal of, premium, if any, and accrued interest on
Notes payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that
date such Notes cease to be outstanding and interest on them ceases to accrue.
Subject to Section 12.06, a Note does not cease to be outstanding solely
because the Company or an Affiliate holds the Note.
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Section 2.09. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form, and shall carry all rights, of definitive Notes but
may have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes presented to it.
Section 2.10. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent, and no one else,
shall cancel and at the written request of the Company, shall dispose of all
Notes surrendered for transfer, exchange, payment or cancellation. If the
Company or any Guarantor shall acquire any of the Notes, such acquisition shall
not operate as a redemption or satisfaction of the Indebtedness represented by
such Notes unless and until the same are surrendered to the Trustee for
cancellation or pursuant to this Section 2.10.
Section 2.11 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.01 hereof, to the persons who are Noteholders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least
15 days before the special record date, the Company shall mail or cause to be
mailed to each Noteholder, with a copy to the Trustee, a notice that states the
special record date, the payment date, and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Section 2.12. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest Payment Date and
on the Maturity Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or on the Maturity Date, as the case may be,
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in a timely manner which permits the Trustee to remit payment to the Holders on
such Interest Payment Date or on the Maturity Date, as the case may be.
Section 2.13 CUSIP Number
The Company in issuing the Notes may use one or more "CUSIP" numbers, and
if so, the Trustee shall use the CUSIP number(s) in notices of redemption or
exchange as a convenience to Holders, provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number(s) printed in the notice or on the Notes, and that reliance may be
placed only on the other identification numbers printed on the Notes.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 6 of the
Notes, it shall notify the Trustee of the Redemption Date and the principal
amount of Notes to be redeemed at least 30 days (unless a shorter notice shall
be satisfactory to the Trustee) but not more than 60 days before the Redemption
Date. Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 3.02. Selection by Trustee of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed pro rata, by lot or by any other method that
the Trustee considers fair and equitable and, if such Notes are listed on any
securities exchange, by a method that complies with the requirements of such
exchange.
The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption and shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
Notes in denominations of $1,000 may be redeemed only in whole. The Trustee
may select for redemption portions (equal to $1,000 or integral multiples
thereof) of the principal amount of Notes that have
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denominations larger than $1,000. Provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.
Section 3.03 Notice of Redemption.
At least 30 days, and no more than 60 days, before a Redemption
Date, the Company shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each Holder of Notes to be redeemed at his or her last
address as the same appears on the registry books maintained by the Registrar
pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including the CUSIP
number(s) thereof, if any) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless (a) the Company defaults in making the redemption
payment or (b) such redemption payment is prohibited pursuant to Article
10 or 11 hereof or otherwise, interest on the Notes called for redemption
ceases to accrue on and after the Redemption Date, and the only remaining
right of the Holders of such Notes is to receive payment of the
redemption price upon surrender to the Paying Agent of the Notes
redeemed;
(7) the paragraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial redemption.
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At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's sole expense.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed, Notes
called for redemption become due and payable on the Redemption Date and at the
redemption price, plus interest, if any, accrued to the Redemption Date. Upon
surrender to the Trustee or Paying Agent, such Notes shall be paid at the
redemption price, plus accrued interest, if any, to the Redemption Date unless
prohibited by Article 10 or 11, provided that if the Redemption Date is after a
regular interest payment record date and on or prior to the Interest Payment
Date, the accrued interest shall be payable to the Holder of the redeemed Notes
registered on the relevant record date.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each Redemption Date,
the Company shall deposit with the Paying Agent in immediately available funds
money sufficient to pay the redemption price of and accrued interest, if any,
on all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Company to
the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Notes called for redemption shall
have been made available in accordance with the preceding paragraph, the Notes
called for redemption will cease to accrue interest and the only right of the
Holders of such Notes will be to receive payment of the redemption price of and,
subject to the proviso in Section 3.04, accrued and unpaid interest on such
Notes to the Redemption Date. If any Note called for redemption shall not be so
paid, interest will be paid, from the Redemption Date until such redemption
payment is made, on the unpaid principal of the Note and any interest not paid
on such unpaid principal, in each case, at the rate and in the manner provided
in the Notes.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
<PAGE> 38
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ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes and this Indenture. An
installment of principal or interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay such installment and is not prohibited from paying such money
to the Holders pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal, and overdue interest,
to the extent lawful, at the rate specified in the Notes.
Section 4.02 SEC Reports.
The Company will deliver to the Trustee within 15 days after the filing of
the same with the SEC, copies of the quarterly and annual report and of the
information documents and other
reports, if any, 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 subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company will file with the SEC, to the extent permitted, and
provide the Trustee and Holders of Notes with such quarterly and annual reports
and such information, documents and other reports specified in Section 13 and
15(d) of the Exchange Act. The Company will also comply with the other
provisions of TIA Section 314(a).
Section 4.03 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead (as a defense or otherwise) or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company from paying all or any portion of the principal of, premium, if any,
and/or interest on the Notes as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power
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herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 4.04 Compliance Certificate.
The Company shall deliver to the Trustee, within 100 days after the end of
each fiscal year and on or before 50 days after the end of the first, second
and third quarters of each fiscal year, an Officers' Certificate which complies
with TIA Section 314(a)(4) stating that a review of the activities of the
Company and its Subsidiaries during such fiscal year or fiscal quarter, as the
case may be, 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 or her 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 of such Defaults or Events of
Default of which he or she may have knowledge and what action each is taking or
proposes to take with respect thereto) and that to the the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.02 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements nothing has come to
their attention which would lead them to believe that the Company has violated
any provisions of this Article 4 or Article 5 hereof 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 for any failure to obtain knowledge of any such violation.
(i) If any Default or Event of Default has occurred and is continuing or
(ii) if any Holder seeks to exercise any remedy hereunder with respect to a
claimed Default under this
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Indenture or the Notes, the Company shall deliver to the Trustee an Officers'
Certificate specifying such event, notice or other action within five
Business Days of its becoming aware of such occurrence.
Section 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of it or any of its Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor
to the extent required by GAAP.
Section 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful to the
conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries, taken as a whole; provided,
however, that nothing in this Section 4.06 shall prevent the Company or any
Subsidiary from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is
in the good faith judgment of the Board of Directors of the Company or the
Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company are
<PAGE> 41
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adequate and appropriate for the conduct of the business of the Company and
such Subsidiaries in a prudent manner, with reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall
be customary, in the good faith judgment of the Company, for corporations
similarly situated in the industry, unless the failure to provide such
insurance (together with all other such failures) would not have a material
adverse effect on the financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole.
Section 4.07. Compliance with Laws.
The Company shall, and shall cause each of its Subsidiaries to, comply
with all applicable statutes, rules, regulations, orders and restrictions of
the United States of America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of its
businesses and the ownership of its properties, except for such noncompliances
as would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries, taken
as a whole.
Section 4.08. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Restricted Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Restricted
Subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders.
Section 4.09. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Notes may be
surrendered f
or registration of transfer or exchange or for presentation for
payment and where notices and demands to or
<PAGE> 42
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upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 12.02.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations. The Company
shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust Office of the
Trustee set forth in Section 12.02 as such office of the Company.
Section 4.10. Limitation on Additional Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) other than Permitted Indebtedness.
(b) Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may incur Indebtedness (including Acquired Indebtedness), if (i)
after giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the Company's Fixed Charge Coverage Ratio
(determined on a pro forma basis for the last four fiscal quarters of the
Company for which financial statements are available at the date of
determination in accordance with the further provisions of this clause (b)) is
greater than 2.0 to 1 if the Indebtedness is incurred prior to _______, 1999
and 2.25 to 1 if the Indebtedness is incurred thereafter and (ii) no Default or
Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of such Indebtedness. For purposes of computing
the Fixed Charge Coverage Ratio, (A) if the Indebtedness which is the subject
of a determination under this provision is Acquired Indebtedness, or
Indebtedness incurred in connection with the simultaneous acquisition (by way
of merger, consolidation or otherwise) of any Person, business, property or
assets (an "Acquisition"), then such ratio shall be determined by giving effect
to (on a pro forma basis, as if the transaction had occurred at the beginning
of the four-quarter period used to make
<PAGE> 43
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such calculation) to both the incurrence or assumption of such Acquired
Indebtedness or such other Indebtedness and the inclusion in the Company's
EBITDA of the EBITDA of the acquired Person, business, property or assets, (B)
if any Indebtedness outstanding or to be incurred (x) bears a floating rate of
interest, the interest expense on such Indebtedness shall be calculated as if
the rate in effect on the date of determination had been the applicable rate
for the entire period (taking into account on a pro forma basis any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term as at the date of determination in excess of 12 months),
(y) bears, at the option of the Company or a Restricted Subsidiary, a fixed or
floating rate of interest, the interest expense on such Indebtedness shall be
computed by applying, at the option of the Company or such Restricted
Subsidiary, either a fixed or floating rate and (z) was incurred under a
revolving credit facility, the interest expense on such Indebtedness shall be
computed based upon the average daily balance of such Indebtedness during the
applicable period, (C) for any quarter prior to the date hereof included in the
calculation of such ratio, such calculation shall be made on a pro forma basis,
giving effect to the acquisition by the Company of Motor Wheel, the issuance of
the Notes, the incurrence of Indebtedness under the Credit Agreement and the
use of the net proceeds therefrom as if the same had occurred at the beginning
of the four-quarter period used to make such calculation and (D) for any
quarter included in the calculation of such ratio prior to the date that any
Asset Sale was consummated, or that any Indebtedness was incurred, or that any
Acquisition was effected, by the Company or any of its Subsidiaries, such
calculation shall be made on a pro forma basis, giving effect to each Asset
Sale, incurrence of Indebtedness or Acquisition, as the case may be, and the
use of any proceeds therefrom, as if the same had occurred at the beginning of
the four quarter period used to make such calculation.
Section 4.11. Limitation on Foreign Indebtedness.
The Company shall not permit any Restricted Subsidiary of the Company
which is not a Guarantor to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) other than Permitted Indebtedness set forth
in clauses (i) through (x) of the definition thereof unless (i) the
Indebtedness is incurred, denominated and payable in the local currencies of
the jurisdictions of the operations of the Restricted Subsidiary incurring such
Indebtedness or of the business or the location of assets being acquired with
the proceeds of such Indebtedness; provided, however, that any Indebtedness
permitted to be incurred in a Western European currency pursuant to this clause
(i) may be incurred in any Western European currency;
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provided, further, that any Restricted Subsidiary whose operations are located
in Mexico may also incur Indebtedness denominated and payable in U.S. dollars,
(ii) after giving effect to the incurrence of such Indebtedness and the receipt
of the application of the proceeds thereof, (A) if, as a result of the
incurrence of such Indebtedness such Restricted Subsidiary will become subject
to any restriction or limitation on the payment of dividends or the making of
other distributions, (I) the ratio of Foreign EBITDA to Foreign Interest
Expense (determined on a pro forma basis for the last four fiscal quarters for
which financial statements are available at the date of determination) is
greater than 3.0 to 1 and (II) the ratio of the Company's Adjusted EBITDA to
Consolidated Fixed Charges (determined on a pro forma basis for the last four
fiscal quarters of the Company for which financial statements are available at
the date of determination) is greater than 2.0 to 1 if the Indebtedness is
incurred prior to , 1999 and 2.25 to 1 if the Indebtedness is incurred
thereafter and (B) in any other case, the Company's Fixed Charge Coverage Ratio
(determined on a pro forma basis for the last four fiscal quarters of the
Company for which financial statements are available at the date of
determination) is greater than 2.0 to 1 if the Indebtedness is incurred prior
to , 1999 and 2.25 to 1 if the Indebtedness is incurred thereafter,
and (iii) no Default or Event of Default shall have occurred and be continuing
at the time or as a consequence of the incurrence of such Indebtedness.
(b) In the event that any Indebtedness incurred pursuant to clause
(ii)(B) of the foregoing paragraph (a) is proposed to be amended, modified or
otherwise supplemented such that the payment of dividends or the making of
other distributions becomes subject in any manner to any restriction or
limitation, the Company will not permit the Restricted Subsidiary to so amend,
modify or supplement such Indebtedness unless such Indebtedness could be
incurred pursuant to the terms of clause (ii)(A) of the foregoing paragraph
(a).
(c) All calculations required under paragraphs (a) and (b) hereof shall be
made in a manner consistent with the calculations required under paragraph (b)
of Section 4.10.
Section 4.12. Limitation on Common Stock of Subsidiaries.
The Company shall not (i) sell, pledge, hypothecate or otherwise convey or
dispose of any Common Stock of a Restricted Subsidiary (other than under or in
respect of the Credit Agreement or under the terms of any Designated Senior
Indebtedness and other than pledges of the Capital Stock of Restricted
Subsidiaries that are not Guarantors securing Indebtedness of such Restricted
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Subsidiaries that are not Guarantors) or (ii) permit any of its Subsidiaries to
issue any Common Stock, other than to the Company or a Wholly-Owned Subsidiary
of the Company. The foregoing restrictions shall not apply to an Asset Sale
made in compliance with Section 4.14.
Section 4.13. Limitation on Restricted Payments.
The Company shall not make, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such Restricted
Payment, the Company could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under Section 4.10; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) $5,000,000, plus (2) 50% of the Company's
Consolidated Net Income (or in the event that such Consolidated Net Income
shall be a deficit, minus 100% of such deficit) after the Issue Date, plus
(3) 100% of the aggregate Net Cash Proceeds from the issue or sale, after
the Issue Date, of Capital Stock (other than Disqualified Capital Stock or
Capital Stock of the Company issued to any Subsidiary of the Company) of
the Company or any Indebtedness or other securities of the Company
convertible into or exercisable or exchangeable for Capital Stock (other
than Disqualified Capital Stock) of the Company which has been so
converted or exercised or exchanged, as the case may be. For purposes of
determining under this clause (c) the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount
thereof and
The provisions of this Section 4.13 shall not prohibit (i) the payment of
any distribution within 60 days after the date of declaration thereof, if at
such date of declaration such payment would comply with the provisions of this
Indenture, (ii) the retirement of any shares of Capital Stock of the Company or
Indebtedness which is subordinated in right of payment to the Notes by
conversion into, or by or in exchange for, shares of Capital
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Stock (other than Disqualified Capital Stock), or out of, the Net Cash Proceeds
of the substantially concurrent sale (other than to a Subsidiary of the
Company) of other shares of Capital Stock of the Company (other than
Disqualified Capital Stock), (iii) the redemption, repayment or retirement of
Indebtedness of the Company subordinated in right of payment to the Notes in
exchange for, by conversion into, or out of the Net Cash Proceeds of, a
substantially concurrent sale or incurrence of Indebtedness (other than any
Indebtedness owed to a Subsidiary) of the Company that is contractually
subordinated in right of payment to the Notes to at least the same extent as
the Indebtedness being redeemed, repaid or retired, (iv) the retirement of any
shares of Disqualified Capital Stock by conversion into, or by exchange for,
shares of Disqualified Capital Stock, or out of the Net Cash Proceeds of the
substantially concurrent issuance or sale (other than to a Subsidiary of the
Company) of other shares of Disqualified Capital Stock, or (v) the making of
Investments in Unrestricted Subsidiaries and joint ventures, provided that the
Net Investment therein shall not exceed an aggregate of $15,000,000 and (vi)
the making of Investments funded with the transfer of excess fixed assets no
longer necessary in the conduct of the business of the Company and its
Subsidiaries in an aggregate amount not to exceed $15,000,000; provided,
however, that in calculating the aggregate amount of Restricted Payments made
subsequent to the Issue Date, the amount of Net Investments made pursuant to
clauses (v) and (vi) shall be included in the calculation.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.13 were computed, which calculations
may be based upon the Company's latest available financial statements, and that
no Default or Event of Default exists and is continuing and no Default or
Event of Default will occur immediately after giving effect to any Restricted
Payments.
Section 4.14. Limitation on Other Senior Subordinated Debt.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness (other than the Notes and the Guarantees, as the case may be) that
is both (i) subordinate in right of payment to any Senior Indebtedness of the
Company or its Restricted Subsidiaries, as the case may be, and (ii) senior in
right of payment to the Notes and the Guarantees, as the case may be. For
purposes of this Section 4.14, Indebtedness is deemed to be senior in right of
payment to the Notes and the
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Guarantees, as the case may be, if it is not explicitly subordinate in
right of payment to Senior Indebtedness at least to the same extent as the
Notes and the Guarantees, as the case may be, are subordinate to Senior
Indebtedness.
Section 4.15 Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company
or its Restricted Subsidiaries, as the case may be, receives consideration
at the time of such sale or other disposition at least equal to the fair
market value thereof (as determined in good faith by the Company's Board of
Directors, and evidenced by a Board Resolution); (ii) not less than 75% of
the consideration received by the Company or its Subsidiaries, as the case
may be, is in the form of cash or Temporary Cash Investments other than in
the case where the Company or a Restricted Subsidiary is exchanging assets
held by the Company or such Restricted Subsidiary for assets held by
another Person provided that any Investment received in such exchange would
be permitted under clause (B) below; and (iii) the Asset Sale Proceeds
received by the Company or such Restricted Subsidiary are applied (A)
first, to the extent the Company elects, or is required, to prepay, repay
or purchase any then existing Senior Indebtedness of the Company or any
Restricted Subsidiary within 180 days following the receipt of the Asset
Sale Proceeds from any Asset Sale, provided that any such repayment shall
result in a permanent reduction of the commitments, if any, thereunder in
an amount equal to the principal amount so repaid; (B) second, to the
extent of the balance of Asset Sale Proceeds after application as described
above, to the extent the Company elects, to an investment in assets used
or useful in businesses similar or reasonably related to the business of
the Company or Restricted Subsidiary as conducted on the Issue Date (either
directly or indirectly through the purchase of Capital Stock or other
securities of a person holding such assets), provided that such investment
occurs or the Company or a Restricted Subsidiary enters into contractual
commitments to make such investment, subject only to customary conditions
(other than the obtaining of financing), on or prior to the 181st day
following receipt of such Asset Sale Proceeds (the "Reinvestment Date") and
Asset Sale Proceeds contractually committed are so applied within 270 days
following the receipt of such Asset Sale Proceeds; and (C) third, if on the
Reinvestment Date with respect to any Asset Sale, the Available Asset Sale
Proceeds exceed $10,000,000, the Company shall apply an amount equal to
such Available Asset Sale Proceeds to an offer to repurchase the Notes, at
a purchase price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase (an "Excess
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Proceeds Offer"). If an Excess Proceeds Offer is not fully subscribed, the
Company may retain the portion of the Available Asset Sale Proceeds not
required to repurchase Notes.
(b) If the Company is required to make an Excess Proceeds Offer,
the Company shall mail, within 30 days following the Reinvestment Date, a
notice to the Holders with a copy to the Trustee which shall include, among
other things, the instructions, determined by the Company, that each Holder
must follow in order to have such Notes repurchased and the calculations
used in determining the amount of Available Asset Sale Proceeds to be
applied to the repurchase of such Notes. The notice, which shall govern
the terms of the Excess Proceeds Offer, shall also state:
(1) that the Excess Proceeds Offer is being made pursuant to
this Section 4.15 and that the Excess Proceeds Offer shall remain open
for a period of 20 Business Days following its commencement or such
longer period as may be required by law (the "Offer Period");
(2) that such Holders have the right to require the Company to
apply the Available Asset Sale Proceeds to repurchase such Notes at a
purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase;
(3) the purchase price and the purchase date (the "Purchase
Date") which shall be no earlier than 30 days and not later than 60
days from the date such notice is mailed;
(4) that any Note not tendered or accepted for payment will
continue to accrue interest;
(5) that any Note accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the
Purchase Date;
(6) that Holders electing to have a Note purchased pursuant to
any Excess Proceeds Offer will be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice
at least three Business Days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if
the Company, depositary or Paying Agent, as the case may be, receives,
not later than the expiration of the
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Offer Period, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have the Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Available Asset Sale Proceeds, the Company
shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(9) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered.
On or before the Purchase Date, the Company shall, to the extent
lawful, for payment, on a pro rata basis to the extent necessary, Notes or
portions thereof tendered pursuant to the Excess Proceeds Offer, deposit
with the Paying Agent U.S. legal tender sufficient to pay the purchase
price plus accrued interest, if any, on the Notes to be purchased and
deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 4.15. The Paying Agent shall promptly (but
in any case not later than three Business Days after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase
price of the Note tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new Note, and the Trustee
shall authenticate and mail or make available for delivery such new Note to
such Holder equal in principal amount to any unpurchased portion of the
Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Excess Proceeds Offer on the Purchase Date. If
an Excess Proceeds Offer is not fully subscribed, the Company may retain
that portion of the Available Asset Sale Proceeds not required to
repurchase Notes.
Section 4.16. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (including entities in which the Company or
any of its
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Restricted Subsidiaries own a minority interest) or holder of 10% or more
of the Company's Common Stock (an "Affiliate Transaction") or extend, renew,
waive or otherwise modify the terms of any Affiliate Transaction entered into
prior to the Issue Date unless (i) such Affiliate Transaction is between or
among the Company and/or its Wholly Owned Subsidiaries; or (ii) the terms of
such Affiliate Transaction are fair and reasonable to the Company or such
Restricted Subsidiary, as the case may be, and the terms of such Affiliate
Transaction are at least as favorable as the terms which could be obtained by
the Company or such Restricted Subsidiary, as the case may be, in a comparable
transaction made on an arm's-length basis between unaffiliated parties. In any
Affiliate Transaction involving an amount or having a value in excess of
$2,000,000 which is not permitted under clause (i) above, the Company must
obtain a resolution of the Board of Directors certifying that such Affiliate
Transaction complies with clause (ii) above. In transactions with a value in
excess of $10,000,000 which are not permitted under clause (i) above, the
Company or such Restricted Subsidiary must obtain a written opinion as to the
fairness of such a transaction from an independent investment banking firm.
(b) The foregoing provisions of this Section 4.16 will not apply to (i)
any Restricted Payment that is not prohibited by Section 4.13, (ii)
reasonable and customary fees paid by the Company or its Restricted
Subsidiaries to their respective directors or (iii) customary investment
banking, underwriting, placement agent or financial advisor fees paid in
connection with services rendered to the Company or its Subsidiaries.
Section 4.17. Limitations on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind upon any Property of the Company or any
Restricted Subsidiary, now owned or hereafter acquired, which secures
Indebtedness pari passu with or subordinated to the Notes unless (i) if such
Lien secures Indebtedness which is pari passu with the Notes, then the Notes
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligation is no longer secured by a Lien or (ii) if such
Lien secures Indebtedness which is subordinated to the Notes, any such Lien
shall be subordinated to a Lien granted to the Holders of the Notes in the same
collateral as that securing such Lien to the same extent as such subordinated
Indebtedness is subordinated to the Notes.
<PAGE> 51
Section 4.18. Limitation on Creation of Subsidiaries.
The Company shall not create or acquire, nor permit any of its Restricted
Subsidiaries to create or acquire, any Subsidiary other than (i) a Restricted
Subsidiary existing as of the date of this Indenture, (ii) a Restricted
Subsidiary conducting a business similar or reasonably related to the business
of the Company and its Subsidiaries as conducted on the Issue Date, or (iii) an
Unrestricted Subsidiary; provided, however, that each Restricted Subsidiary
which is a Domestic Subsidiary acquired or created pursuant to clause (ii)
shall have executed a guarantee, satisfactory in form and substance to the
Trustee (and with such documentation relating thereto as the Trustee shall
require, including, without limitation a supplement or amendment to this
Indenture and opinions of counsel as to the enforceability of such guarantee),
pursuant to which such Restricted Subsidiary shall become a Guarantor. Neither
the Company nor any of the Guarantors will transfer any assets to a Domestic
Restricted Subsidiary which is not a Guarantor unless such Restricted
Subsidiary simultaneously with such transfer executes a guarantee satisfactory
in form and substance to the Trustee (together with the documentation referred
to in the preceding sentence) pursuant to which such Restricted Subsidiary
shall become a Guarantor.
Section 4.19. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or
agreed to be paid to all Holders of the Notes which so consent, waive or agree
to amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
Section 4.20. Change of Control.
(a) Within 20 days of the occurrence of a Change of Control, the Company
shall notify the Trustee in writing of such occurrence and shall make
an offer to purchase (the "Change of Control Offer") the outstanding Notes at a
purchase price equal to 101% of the principal amount thereof plus any accrued
and unpaid interest thereon to the Change of Control Payment Date (such
purchase price being hereinafter referred to as the "Change of Control Purchase
Price") in accordance with the procedures set forth in this Section 4.20.
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If the Credit Agreement is in effect, or any amounts are owing
thereunder or in respect thereof, at the time of the occurrence of a Change
of Control, prior to the mailing of the notice to Holders described in
paragraph (b) below, but in any event within 30 days following any Change
of Control, the Company covenants to (i) repay in full all obligations
under or in respect of the Credit Agreement or offer to repay in full all
obligations under or in respect of the Credit Agreement and repay the
obligations under or in respect of the Credit Agreement of each lender who
has accepted such offer or (ii) obtain the requisite consent under the
Credit Agreement to permit the repurchase of the Notes pursuant to this
Section 4.20. The Company must first comply with the covenant described in
the preceding sentence before it shall be required to purchase Notes in the
event of a Change of Control; provided that the Company's failure to comply
with the covenant described in the preceding sentence constitutes an Event
of Default described in clause (3) under Section 6.01 hereof if not cured
within 60 days after the notice required by such clause.
(b) Within 20 days of the occurrence of a Change of Control, the
Company also shall (i) cause a notice of the Change of Control Offer to be
sent at least once to the Dow Jones News Service or similar business news
service in the United States and (ii) send by first-class mail, postage
prepaid, to the Trustee and to each Holder of the Notes, at the address
appearing in the register maintained by the Registrar of the Notes, a
notice stating:
(i) that the Change of Control Offer is being made pursuant to
this Section 4.20 and that all Notes tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth
herein;
(ii) the Change of Control Purchase Price and the purchase date
(which shall be a Business Day no earlier than 20 business days from
the date such notice is mailed (the "Change of Control Payment
Date"));
(iii) that any Note not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(v) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be
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required to surrender the Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the Business Day preceding the Change of Control Payment
Date;
(vi) that Holders will be entitled to withdraw their acceptance if
the Paying Agent receives, not later than the close of business on the
third Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Notes
purchased;
(vii) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, provided that each Note purchased and
each such new Note issued shall be in an original principal amount in
denominations of $1,000 and integral multiples thereof;
(viii) any other procedures that a Holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Company. The Paying Agent shall promptly mail to each
Holder of Notes so accepted payment in an amount equal to the purchase price
for such Notes, and the Company shall execute and issue, and the Trustee shall
promptly authenticate and make available for delivery to such Holder, a new
Note equal in principal amount to any unpurchased portion of the Notes
surrendered; provided that each such new Note shall be issued in an original
principal amount in denominations of $1,000 and integral multiples thereof.
(c) (i) If the Company or any Subsidiary thereof has issued any
outstanding (A) Indebtedness that is subordinated in right of payment
to the Notes or (B) Preferred Stock, and the
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Company or such Subsidiary is required to repurchase, or make an offer to
repurchase, such Indebtedness, or redeem, or make an offer to redeem, such
Preferred Stock, in the event of a Change of Control or to make a
distribution with respect to such subordinated Indebtedness or Preferred
Stock in the event of a change of control, the Company shall not consummate
any such offer or distribution with respect to such subordinated
Indebtedness or Preferred Stock until such time as the Company shall have
paid the Change of Control Purchase Price in full to the Holders of Notes
that have accepted the Company's Change of Control Offer and shall
otherwise have consummated the Change of Control Offer made to Holders of
the Notes and (ii) the Company will not issue Indebtedness that is
subordinated in right of payment to the Notes or Preferred Stock with
change of control provisions requiring the payment of such Indebtedness or
Preferred Stock prior to the payment of the Notes in the event of a Change
in Control under this Indenture.
In the event that a Change of Control occurs and the Holders of
Notes exercise their right to require the Company to purchase Notes, if
such purchase constitutes a "tender offer" for purposes of Rule 14e-1 under
the Exchange Act at that time, the Company will comply with the
requirements of Rule 14e-1 as then in effect with respect to such
repurchase.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation,
Merger and Sale of Assets.
(a) The Company shall not and shall not permit any Guarantor to
consolidate with, merge with or into, or transfer all or substantially all
of its assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions), to any Person unless:
(i) the Company or the Guarantor, as the case may be, shall be the
continuing Person, or the Person (if other than the Company or the
Guarantor) formed by such consolidation or into which the Company or the
Guarantor, as the case may be, is merged or to which the properties and
assets of the Company or the Guarantor, as the case may be, are transferred
shall be a corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee,
in
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form satisfactory to the Trustee, all of the obligations of the Company or
the Guarantor, as the case may be, under the Notes and this Indenture, and
the obligations under this Indenture shall remain in full force and effect;
(ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and (iii) immediately after giving effect to such transaction
on a pro forma basis the Company or such Person could incur at least $1.00
additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.10 hereof, provided that a Person that is a Guarantor on the
Issue Date may merge into the Company or another Person that is a Guarantor
on the Issue Date without complying with this clause (iii).
(b) In connection with any consolidation, merger or transfer of
assets contemplated by this Section 5.01, the Company shall deliver or
cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and the
supplemental indenture in respect thereto comply with this Section 5.01 and
that all conditions precedent herein provided for relating to such
transaction or transactions have been complied with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Guarantor in
accordance with Section 5.01 above, the successor corporation formed by
such consolidation or into which the Company is merged or to which such
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or such Guarantor under this
Indenture with the same effect as if such successor corporation had been
named as the Company or such Guarantor herein, and thereafter the
predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Notes.
<PAGE> 56
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if
(1) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not such
payment is prohibited by the provisions of Article 11 hereof;
(2) there is a default in the payment of any interest on any Note
when the same becomes due and payable and the Default continues for a
period of 30 days, whether or not such payment is prohibited by the
provisions of Article 11 hereof;
(3) the Company or any Guarantor defaults in the observance or
performance of any other covenant in the Notes or this Indenture for 60
days after written notice from the Trustee or the Holders of not less
than 25% in the aggregate principal amount of the Notes then outstanding;
(4) there is a default in the payment at final maturity of principal
in an aggregate amount of $10,000,000 or more with respect to any
Indebtedness of the Company or any Restricted Subsidiary thereof which
default shall not be cured, waived or postponed pursuant to an agreement
with the holders of such Indebtedness within 60 days after written
notice, or the acceleration of any such Indebtedness aggregating
$10,000,000 or more which acceleration shall not be rescinded or annulled
within 20 days after written notice to the Company of such Default by the
Trustee or any Holder;
(5) a court of competent jurisdiction enters a final judgment or
judgments which can no longer be appealed for the payment of money in
excess of $10,000,000 against the Company or any Restricted Subsidiary
thereof and such judgment remains undischarged, for a period of 60
consecutive days during which a stay of enforcement of such judgment
shall not be in effect;
(6) the Company or any Restricted Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
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(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become due; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Restricted
Subsidiary or for all or substantially all of the property of the
Company or any Restricted Subsidiary, or
(C) orders the liquidation of the Company or any Restricted
Subsidiary,
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.
The Trustee may withhold notice to the Holders of the Notes of any
Default (except in payment of principal or premium, if any, or interest on the
Notes) if the Trustee considers it to be in the best interest of the Holders of
the Notes to do so.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising under
Section 6.01(6) or (7) with respect to the Company) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding may by written notice
to the
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Company and the Trustee declare to be immediately due and payable the entire
principal amount of all the Notes then outstanding plus accrued but unpaid
interest to the date of acceleration and (i) such amounts shall become
immediately due and payable or (ii) if there are any amounts outstanding under
or in respect of the Credit Agreement, such amounts shall become due and
payable upon the first to occur of an acceleration of amounts outstanding under
or in respect of the Credit Agreement or five Business Days after receipt by
the Company and the Representative of the holders of Senior Indebtedness under
or in respect of the Credit Agreement of notice of the acceleration of the
Notes; provided, however, that after such acceleration but before a judgement
or decree based on such acceleration is obtained by the Trustee, the Holders of
a majority in aggregate principal amount of the outstanding Notes may rescind
and annul such acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of accelerated principal, premium, if any,
or interest that has become due solely because of the acceleration, have been
cured or waived, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid
and (iii) if the rescission would not conflict with any judgment or decree. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default specified in Section 6.01(6)
or (7) with respect to the Company occurs, such principal, premium, if any, and
interest amount with respect to all of the Notes shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment
of principal of, or premium, if any, and interest on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
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Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a majority
in principal amount of the Notes then outstanding have the right to waive any
existing Default or Event of Default or compliance with any provision of this
Indenture or the Notes. 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 Event of Default or impair any right
consequent thereto.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes then
outstanding 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 the Trustee by this Indenture. The Trustee, however, may refuse
to follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another
Noteholder or that may involve the Trustee in personal liability; provided that
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
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(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the rights
of another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal of, or premium, if
any, and interest of the Note on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(1) or (2) hereof occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company or the Guarantors (or any other
obligor on the Notes) for the whole amount of unpaid principal and accrued
interest remaining unpaid, together with interest on overdue principal and,
to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate then borne by the Notes,
and such further amounts 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 may 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
Noteholders allowed in any judicial proceedings relative to the Company or
the Guarantors (or any other obligor upon the Notes), any of their
respective creditors or any of their respective property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and
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expenses to the extent that any such charges and expenses are not paid out of
the estate in any such proceedings and any custodian in any such judicial
proceeding is hereby authorized by each Noteholder 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 Noteholders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
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pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the same circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(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 but, 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 be under a duty to examine the same 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 willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(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.
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(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 Sections 6.02 and 6.05 hereof.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity satisfactory
to it against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, paragraphs (a),
(b), (c) and (d) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
(g) The Trustee shall have no responsibility to examine or review and
shall have no liability for the contents of any documents submitted to or
delivered to any Noteholder by the Company in the nature of an official
statement or offering circular, whether preliminary or final (except to the
extent of any description of the Trustee itself or the location of its office).
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document reasonably 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.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 12.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to
take in good faith in reliance on such certificate or opinion.
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(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed by it with due
care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the Company or any Guarantor, or any
Affiliates thereof, with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, shall be
subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Notes, it shall not be accountable for the Company's
use of the proceeds from the sale of Notes or any money paid to the Company
pursuant to the terms of this Indenture and it shall not be responsible for
any statement in the Notes other than its certificate of authentication.
Section 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is actually known to a Responsible Officer of the Trustee, the Trustee shall
mail to each Noteholder notice
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of the Default or the Event of Default, as the case may be, within 30 days
after it is actually known to a Responsible Officer of the Trustee. Except in
the case of a Default or an Event of Default in payment of the principal of, or
premium, if any, or interest on any Note the Trustee may withhold the notice if
and so long as the board of directors of the Trustee, the executive committee
or any trust committee of such board and/or its Trust Officers in good faith
determine(s) that withholding the notice is in the interests of the
Noteholders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after May 15 of any year, commencing the May 15 following
the date of this Indenture, the Trustee shall mail to each Noteholder a brief
report dated as of such May 15 if required that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).
A copy of each report at the time of its mailing to Noteholders shall be
filed with the SEC and each stock exchange, if any, on which the Notes are
listed. The Company shall promptly notify the Trustee when the Notes
are listed on any stock exchange and the Trustee shall comply with TIA Section
313(d).
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any provision of law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless against,
any and all loss or liability incurred by it in connection with the acceptance
or performance of its duties under this Indenture including the reasonable
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. However, the failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations. Notwithstanding the foregoing, the Company and the Guarantors
need not reimburse the Trustee for any expense or indemnify it
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against any loss or liability incurred by the Trustee through its negligence or
bad faith. To secure the payment obligations of the Company and the Guarantors
in this Section 7.07, the Trustee shall have a lien prior to the Notes on all
money or property held or collected by the Trustee except such money or
property held in trust to pay principal of and interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include any
trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by notifying the removed Trustee in writing and may appoint a
successor Trustee with the Company's written consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an 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 Company shall promptly notify each Holder of
such event and shall promptly appoint a successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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If the Trustee fails to comply with Section 7.10 hereof, any Noteholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately following such
delivery, the retiring Trustee shall, subject to its rights and the payment of
all amounts owed to it under Section 7.07 hereof, transfer all property held by
it as Trustee to the successor Trustee, 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. A
successor Trustee shall mail notice of its succession to each Noteholder.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets to, another corporation,
subject to Section 7.10 hereof, the successor corporation without any further
act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5) in every respect. The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b), including the provision in Section 310(b)(1).
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
therein.
Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
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(A) that it will hold all sums held by it as agent for the payment
of principal of, or premium, if any, or interest on, the Notes (whether
such sums have been paid to it by the Company or by any obligor on the
Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee
all sums so held in trust by it together with a full accounting thereof;
and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board Resolution of
each of them, and the Trustee may amend or supplement this Indenture or the
Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(3) to comply with any requirements of the SEC under the TIA;
(4) to cure any ambiguity, defect or inconsistency, or to make any
other change that does not materially and adversely affect the rights of
any Noteholder; or
(5) to make any other change that does not, in the opinion of the
Trustee, adversely affect in any material respect the rights of any
Noteholders hereunder.
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The Trustee is hereby authorized to join with the Company and the
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
The Company, the Guarantors, when authorized by a Board Resolution of each
of them, and the Trustee may amend or supplement this Indenture or the Notes
with the written consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes without notice to any
Noteholder. The Holders of not less than a majority in aggregate principal
amount of the outstanding Notes may waive compliance in a particular instance
by the Company with any provision of this Indenture or the Notes without notice
to any Noteholder. Subject to Section 8.04, without the consent of each
Noteholder affected, however, an amendment, supplement or waiver, including a
waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver to this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of interest on
any Note;
(3) reduce the principal of or premium on or change the stated
maturity of any Note;
(4) make any Note payable in money other than that stated in the
Note or change the place of payment from New York, New York;
(5) change the amount or time of any payment required by the Notes
or reduce the premium payable upon any redemption of the Notes in
accordance with Paragraph 6 of the Notes, or change the time before which
no such redemption may be made;
(6) waive a default in the payment of the principal of, or interest
on, or redemption payment with respect to, any Note;
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(7) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02; or
(8) affect the ranking of the Notes or the Guarantees in a manner
adverse to the Holders.
After an amendment, supplement or waiver under this Section 8.02 becomes
effective, the Company shall mail to the Holders a notice briefly describing
the amendment, supplement or waiver.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of
the consent of the Noteholders as aforesaid and upon receipt by the Trustee of
the documents described in Section 8.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes effective,
a consent to it by a Holder of a Note is a continuing consent conclusive and
binding upon such Holder and every subsequent Holder of the same Note or
portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Note or portion of a Note, if the Trustee receives
the notice of revocation before the date the amendment, supplement, waiver or
other action becomes effective.
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The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed,
then, notwithstanding the preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent to such amendment, supplement, or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement, waiver or other action becomes effective,
it shall bind every Noteholder, unless it makes a change described in any of
clauses (1) through (8) of Section 8.02 hereof. In that case the amendment,
supplement, waiver or other action shall bind each Holder of a Note who has
consented to it and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note; provided that any such
waiver shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Note, on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note, the
Trustee may request the Holder of the Note to deliver it to the Trustee. In
such case, the Trustee shall place an appropriate notation on the Note about
the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Note shall issue
and the Trustee shall authenticate a new security that reflects the changed
terms. Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment supplement or waiver.
Section 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver 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 or refusing to
sign such amendment, supplement or waiver the Trustee shall be
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entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company or any Guarantor may not sign an amendment or
supplement until the Board of Directors of the Company or such Guarantor, as
appropriate, approves it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Company and the Guarantors may terminate their obligations under the
Notes, the Guarantees and this Indenture, except the obligations referred to in
the last paragraph of this Section 9.01, if there shall have been cancelled by
the Trustee or delivered to the Trustee for cancellation all Notes theretofore
authenticated and delivered (other than any Notes that are asserted to have
been destroyed, lost or stolen and that shall have been replaced as provided in
Section 2.07 hereof) and the Company has paid all sums payable by it hereunder
or deposited all required sums with the Trustee.
After such delivery the Trustee upon request shall acknowledge in writing
the discharge of the Company's and the Guarantors' obligations under the Notes,
the Guarantees and this Indenture except for those surviving obligations
specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof shall
survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution, be discharged from its
obligations with respect to the Notes and the Guarantors discharged from their
obligations under the Guarantees on the date the conditions set forth in
Section 9.04 below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, such Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Notes and to
have satisfied all its other obligations under such Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense of the
Company, shall, subject
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to Section 9.06 hereof, execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of outstanding Notes to
receive solely from the trust funds described in Section 9.04 hereof and as
more fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due, (B) the
Company's obligations with respect to such Notes under Sections 2.03, 2.04,
2.05, 2.06, 2.07, 2.08 and 4.09 hereof, (C) the rights, powers, trusts, duties,
and immunities of the Trustee hereunder (including claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof) and (D) this Article 9.
Subject to compliance with this Article 9, the Company may exercise its option
under this Section 9.02 with respect to the Notes notwithstanding the prior
exercise of its option under Section 9.03 below with respect to the Notes.
Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution, the Company
and the Guarantors shall be released from their respective obligations under
Sections 4.02 through 4.08 and Sections 4.10 through 4.20 hereof, inclusive,
and clause (a)(iii) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 9.04 hereof are
satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Company and the Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section or portion thereof, whether
directly or indirectly by reason of any reference elsewhere herein to any such
specified Section or portion thereof or by reason of any reference in any such
specified Section or portion thereof to any other provision herein or in any
other document, but the remainder of this Indenture and the Notes shall be
unaffected thereby.
Section 9.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.02 or
Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 hereof who shall agree to comply with the
provisions of this Article 9 applicable to it) as funds in trust for the
purpose of
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making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the
Notes, (A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than the
due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and accrued interest on the
outstanding Notes at the maturity date of such principal, premium, if
any, or interest, or on dates for payment and redemption of such
principal, premium, if any, and interest selected in accordance with the
terms of this Indenture and of the Notes;
(2) no Event of Default or Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit, or shall
have occurred and be continuing at any time during the period ending on
the 91st day after the date of such deposit or, if longer, ending on the
day following the expiration of the longest preference period under any
Bankruptcy Law applicable to the Company in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute default under any other agreement
or instrument to which the Company is a party or by which it is bound;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to
register as an investment company under the Investment Company Act of
1940, as amended;
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(6) in the case of an election under Section 9.02 above, 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 to the effect that or (ii) there has
been a change in any applicable Federal income tax law with the effect
that, and such opinion shall confirm that, the Holders of the outstanding
Notes or persons in their positions will not recognize income, gain or
loss for Federal income tax purposes solely as a result of such Legal
Defeasance and will be subject to Federal income tax on the same amounts,
in the same manner, including as a result of prepayment, and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof
(as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or defrauding
any creditors of the Company or others; and
(10) the Company shall have paid or duly provided for payment under
terms mutually satisfactory to the Company and the Trustee all amounts
then due to the Trustee pursuant to Section 7.07 hereof.
Section 9.05. Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions.
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All money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 9.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal, premium, if any, and accrued interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Company and the Guarantors shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 9.04 hereof or the principal,
premium, if any, and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 9.04
hereof which, in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof 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 and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as
the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 9.01 hereof; provided,
however, that if the Company or the Guarantors have made any payment of
principal of, premium, if any, or accrued interest on any Notes because of the
reinstatement of their obligations, the Company or the Guarantors, as the case
may be, shall be subrogated to the rights of the Holders of such Notes to
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receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture, all
moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.01 hereof, to the Company (or,
if such moneys had been deposited by the Guarantors, to such Guarantors), and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held by
the Company or the Guarantors in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which
the principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon Company Request, or if such moneys are then
held by the Company or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company
and the Guarantors for the payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Trustee or any such Paying Agent, before being
required to make any such repayment, may, at the expense of the Company and the
Guarantors, either mail to each Noteholder affected, at the address shown in
the register of the Notes maintained by the Registrar pursuant to Section 2.03
hereof, or cause to be published once a week for two successive weeks, in a
newspaper published in the English language, customarily published each
Business Day and of general circulation in the City of New York, New York, a
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company. After payment to the Company or the Guarantors or the release
of any money held in trust by the Company or any Guarantors, as the case may
be, Noteholders entitled to the money must look only to the Company and the
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Guarantors for payment as general creditors unless applicable abandoned
property law designates another person.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee.
Subject to the provisions of this Article 10, each Guarantor hereby
jointly and severally unconditionally guarantees to each Holder and to the
Trustee, on behalf of the Holders, (i) the due and punctual payment of the
principal of, and premium, if any, and interest on each Note, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
of, and premium, if any, and interest on the Notes, to the extent lawful, and
the due and punctual performance of all other Obligations of the Company to the
Holders or the Trustee all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by acceleration or otherwise. Each
Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any
failure to enforce the provisions of any such Note or this Indenture, any
waiver, modification or indulgence granted to the Company with respect thereto
by the Holder of such Note or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or such
Guarantor.
Each Guarantor hereby waives diligence, presentment, filing of claims with
a court in the event of merger or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest or notice with respect
to any such Note or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged as to any
such Note except by payment in full of the principal thereof, premium if any,
and interest thereon and as provided in Section 9.01 hereof. Each Guarantor
further agrees that, as between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the
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Obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Obligations as provided in Article 6 hereof, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee. In addition,
without limiting the foregoing provisions, upon the effectiveness of an
acceleration under Article 6 hereof, the Trustee shall promptly make a demand
for payment on the Notes under the Guarantee provided for in this Article
10 and not discharged.
The Guarantee set forth in this Section 10.01 shall not be valid or become
obligatory for any purpose with respect to a Note until the certificate of
authentication on such Note shall have been signed by or on behalf of the
Trustee.
Section 10.02. Execution and Delivery of Guarantees.
To evidence the Guarantee set forth in this Article 10, each Guarantor
hereby agrees that a notation of such Guarantee shall be placed on each Note
authenticated and made available for delivery by the Trustee and that this
Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of an Officer of each Guarantor.
Each Guarantor hereby agrees that the Guarantee set forth in Section 10.01
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which the
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of each Guarantor.
Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including,
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without limitation, any guarantees of Senior Indebtedness) and after giving
effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to its contribution obligations under this Indenture,
result in the obligations of such Guarantor under the Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under a
Guarantee shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor.
Section 10.04. Additional Guarantors.
The Company covenants and agrees that it will cause any Person which
becomes obligated to guarantee the Notes, pursuant to the terms of Section 4.18
hereof, to execute a guarantee satisfactory in form and substance to the
Trustee pursuant to which such Restricted Subsidiary shall guarantee the
obligations of the Company under the Notes and this Indenture in accordance
with this Article 10 with the same effect and to the same extent as if such
Person had been named herein as a Guarantor.
Section 10.05. Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all or substantially all of its assets or
the Company and its Restricted Subsidiaries have sold all of the Capital
Stock of the Guarantor owned by them, in each case in a transaction in
compliance with Sections 4.15 and 5.01 hereof; or
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Company or
another Guarantor in a transaction in compliance with Section 5.01
hereof;
and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
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Section 10.06. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness.
Each Guarantor covenants and agrees, and each Holder of Notes, by its
acceptance thereof, likewise covenants and agrees, that to the extent and in
the manner hereinafter set forth in this Article 10, the Indebtedness
represented by the Guarantee and the payment of the principal of, premium, if
any, and interest on the Notes pursuant to the Guarantee by such Guarantor are
hereby expressly made subordinate and subject in right of payment as provided
in this Article 10 to the prior indefeasible payment and satisfaction in full
in cash or, as acceptable to the holders of Guarantor Senior Indebtedness of
such Guarantor, in any other manner, of all existing and future Guarantor
Senior Indebtedness of such Guarantor.
This Section 10.06 and the following Sections 10.07 through 10.11 shall
constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of or continue to hold Guarantor Senior Indebtedness
of any Guarantor; and such provisions are made for the benefit of the holders
of Guarantor Senior Indebtedness of each Guarantor; and such holders
are made obligees hereunder and they or each of them may enforce such
provisions.
Section 10.07. Payment Over of Proceeds upon Dissolution, etc., of a Guarantor.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, arrangement, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, whether voluntary or involuntary, or (b)
any liquidation, dissolution or other winding-up of any Guarantor, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (c) any general assignment for the benefit of creditors or any other
marshalling of assets or liabilities of any Guarantor, then and in any such
event:
(1) the holders of all Guarantor Senior Indebtedness of such
Guarantor shall be entitled to receive payment and satisfaction in full
in cash or, as acceptable to the holders of such Guarantor Senior
Indebtedness, in any other manner, of all amounts due on or in respect of
all such Guarantor Senior Indebtedness, or provision shall be made for
such payment, before the Holders of the Notes are entitled to receive or
retain, pursuant to the Guarantee of such Guarantor, any payment or
distribution of any kind or
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character by such Guarantor on account of any of its Obligations on its
Guarantee; and
(2) any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the subordination provisions of this Article 10 shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Guarantor Senior
Indebtedness of such Guarantor or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Guarantor Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid
on account of such Guarantor Senior Indebtedness held or represented by
each, to the extent necessary to make payment in full in cash or, as
acceptable to the Holders of such Guarantor Senior Indebtedness of such
Guarantor, in any other manner, of all such Guarantor Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 10.07, the Trustee or the Holder of any Note shall have
received any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, including,
without limitation, by way of set-off or otherwise, in respect of any of
its Obligations on its Guarantee before all Guarantor Senior
Indebtedness of such Guarantor is paid and satisfied in full in cash or
such payment and satisfaction in full thereof in cash is provided for,
then and in such event such payment or distribution upon written notice
to the Trustee or the Holder of such Note, as the case may be, shall be
held by the Trustee or the Holder of such Note, as the case may be, in
trust for the benefit of the holders of such Guarantor Senior
Indebtedness of such Guarantor and shall be immediately paid over or
delivered forthwith to the liquidating trustee or agent or other Person
making payment or distribution of assets of such Guarantor for
application to the payment of all such Guarantor Senior Indebtedness
remaining unpaid, to the extent necessary to pay all of such Guarantor
Senior Indebtedness in full in cash or, as acceptable to the holders of
such Guarantor Senior Indebtedness, any other manner, after giving effect
to any
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concurrent payment or distribution to or for the holders of such
Guarantor Senior Indebtedness.
The consolidation of a Guarantor with, or the merger of a Guarantor with
or into, another Person or the liquidation or dissolution of a Guarantor
following the transfer of all of its assets (as an entirety or substantially as
an entirety) to another Person upon the terms and conditions set forth in
Article 5 hereof shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of such Guarantor for the purposes of this Article 10
if the Person formed by such consolidation or the surviving entity of such
merger or the Person which acquires by transfer such assets (as an entirety or
substantially as an entirety) shall, as a part of such consolidation, merger or
transfer, comply with the conditions set forth in such Article 5 hereof.
Section 10.08. Suspension of Guarantee Obligations When Guarantor Senior
Indebtedness in Default.
(a) Unless Section 10.07 hereof shall be applicable, after the occurrence
of a Payment Default with respect to any Designated Senior Indebtedness which
constitutes Guarantor Senior Indebtedness, no payment or distribution of any
assets or securities of any Guarantor (or any Restricted Subsidiary or
Subsidiary of such Guarantor) of any kind or character (including, without
limitation, cash, property and any payment or distribution which may be payable
or deliverable by reason of the payment of any other Indebtedness of such
Guarantor being subordinated to its Obligations on its Guarantee) may be made
by or on behalf of such Guarantor (or any Restricted Subsidiary or Subsidiary
of such Guarantor), including, without limitation, by way of set-off or
otherwise, for or on account of its Obligations on its Guarantee, and neither
the Trustee nor any holder or owner of any Notes shall take or receive from any
Guarantor (or any Restricted Subsidiary or Subsidiary of such Guarantor),
directly or indirectly in any manner, payment in respect of all or any portion
of its Obligations on its Guarantee following the delivery by the
representative of the holders of Designated Senior Indebtedness under or in
respect of the Credit Agreement, for so long as there shall exist any
Designated Senior Indebtedness under or in respect of the Credit Agreement,
and, thereafter, the holders of Designated Senior Indebtedness which
constitutes Guarantor Senior Indebtedness (in either such case, the "Guarantor
Representative") to the Trustee of written notice of (i) the occurrence of a
Payment Default on Designated Senior Indebtedness which constitutes Guarantor
Senior Indebtedness or (ii) the occurrence of a Non-Payment Event of Default on
Designated Senior
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Indebtedness which constitutes Guarantor Senior Indebtedness and the
acceleration of the maturity of such Designated Senior Indebtedness in
accordance with its terms, and in any such event, such prohibition shall
continue until such Payment Default is cured, waived in writing or ceases to
exist or such acceleration has been rescinded or otherwise cured. At such time
as the prohibition set forth in the preceding sentence shall no longer be in
effect, subject to the provisions of the following paragraph (b), such
Guarantor shall resume making any and all required payments in respect of its
Obligations on its Guarantee.
(b) Unless Section 10.07 hereof shall be applicable, upon the occurrence
of a Non-Payment Event of Default on Designated Senior Indebtedness which
constitutes Guarantor Senior Indebtedness of any Guarantor), no payment or
distribution of any assets or securities of such Guarantor of any kind or
character (including, without limitation, cash, property and any payment or
distribution which may be payable or deliverable by reason of the payment of
any other Indebtedness of such Guarantor being subordinated to its Obligations
on its Guarantee) shall be made by such Guarantor, including, without
limitation, by way of set-off or otherwise, for or on account of any of its
Obligations on its Guarantee, and neither the Trustee nor any holder or owner
of any Notes shall take or receive from any Guarantor (or any Restricted
Subsidiary or Subsidiary of such Guarantor), directly or indirectly in any
manner, payment in respect of all or any portion of its Obligations on its
Guarantee for a period (a "Guarantee Payment Blockage Period") commencing on
the date of receipt by the Trustee of written notice from the Guarantor
Representative of such Non-Payment Event of Default, unless and until (subject
to any blockage of payments that may then be in effect under the preceding
paragraph (a)) the earliest to occur of the following events: (x) more than
179 days shall have elapsed since the date of receipt of such written notice by
the Trustee, (y) such Non-Payment Event of Default shall have been cured or
waived in writing or shall have ceased to exist or such Designated Senior
Indebtedness shall have been paid in full in cash and the Trustee has been so
notified by either the Guarantor Representative or such Guarantor or (z) such
Guarantee Payment Blockage Period shall have been terminated by written notice
to such Guarantor or the Trustee from the Guarantor Representative, after
which, in the case of clause (x), (y) or (z), such Guarantor shall resume
making any and all required payments in respect of its Obligations on its
Guarantee. Notwithstanding any other provisions of this Indenture, no event of
default with
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respect to Designated Senior Indebtedness which constitutes Guarantor Senior
Indebtedness (other than a Payment Default) which existed or was continuing on
the date of the commencement of any Guarantee Payment Blockage Period initiated
by the Guarantor Representative shall be, or be made, the basis for the
commencement of a second Guarantee Payment Blockage Period initiated by the
Guarantor Representative unless such event of default shall have been cured or
waived for a period of not less than 90 consecutive days. In no event shall a
Guarantee Payment Blockage Period extend beyond 179 days from the date of the
receipt by the Trustee of the notice referred to in this Section 10.08(b) or,
in the event of a Non-Payment Event of Default which formed the basis for a
Payment Blockage Period under Section 11.03(b) hereof, 179 days from the date
of the receipt by the Trustee of the notice referred to in Section 11.03(b)
(the "Initial Guarantee Blockage Period"). Any number of additional Guarantee
Payment Blockage Periods may be commenced during the Initial Guarantee Blockage
Period; provided, however, that no such additional Guarantee Payment Blockage
Period shall extend beyond the Initial Guarantee Blockage Period. After the
expiration of the Initial Guarantee Blockage Period, no Guarantee Payment
Blockage Period may be commenced under this Section 10.08(b) and no Payment
Blockage Period may be commenced under Section 11.03(b) hereof until at least
180 consecutive days have elapsed from the last day of the Initial Guarantee
Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Trustee or the
Holder of any Note shall have received any payment from a Guarantor prohibited
by the foregoing provisions of this Section 10.08, then and in such event upon
written notice to the Trustee or the Holder of such Note, as the case may be,
such payment shall be paid over and delivered forthwith to the Guarantor
Representative, in trust for distribution to the holders of Guarantor Senior
Indebtedness or, if no amounts are then due in respect of Guarantor Senior
Indebtedness, promptly returned to the Guarantor, or as a court of competent
jurisdiction shall direct.
Section 10.09. Subrogation to Rights of Holders of Guarantor Senior
Indebtedness.
Upon the payment in full of all amounts payable under or in respect of all
Guarantor Senior Indebtedness of a Guarantor, the Holders shall be subrogated
to the rights of the holders of such Guarantor Senior Indebtedness to receive
payments and distributions of cash, property and securities of such Guarantor
made on such Guarantor Senior Indebtedness until all
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amounts due to be paid under the Guarantee shall be paid in full. For the
purposes of such subrogation, no payments or distributions to holders of
Guarantor Senior Indebtedness of any cash, property or securities to which
Holders of the Notes or the Trustee would be entitled except for the provisions
of this Article 10, and no payments over pursuant to the provisions of this
Article 10 to holders of Guarantor Senior Indebtedness by Holders of the Notes
or the Trustee, shall, as among each Guarantor, its creditors other than
holders of Guarantor Senior Indebtedness and the Holders of the Notes, be
deemed to be a payment or distribution by such Guarantor to or on account of
such Guarantor Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article 10 shall have been
applied, pursuant to the provisions of this Article 10, to the payment of all
amounts payable under Guarantor Senior Indebtedness, then and in such case, the
Holders shall be entitled to receive from the holders of such Guarantor Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of Guarantor Senior Indebtedness in excess of the amount
sufficient to pay all amounts payable under or in respect of such Guarantor
Senior Indebtedness in full in cash.
Section 10.10. Guarantee Subordination Provisions Solely To Define Relative
Rights.
The subordination provisions of this Article 10 are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes on the one hand and the holders of Guarantor Senior Indebtedness on the
other hand. Nothing contained in this Article 10 or elsewhere in this
Indenture or in the Notes is intended to or shall (a) impair, as among each
Guarantor, its creditors other than holders of its Guarantor Senior
Indebtedness and the Holders of the Notes, the obligation of such Guarantor,
which is absolute and unconditional, to make payments to the Holders in respect
of its Obligations on its Guarantee in accordance with its terms; or (b) affect
the relative rights against such Guarantor of the Holders of the Notes and
creditors of such Guarantor other than the holders of the Guarantor Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
this Article 10 of the holders of Guarantor Senior Indebtedness (1) in any
case, proceeding, dissolution, liquidation or other winding-up, assignment for
the benefit of
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creditors or other marshaling of assets and liabilities of the Company referred
to in Section 10.07 hereof, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 10.08
hereof, to prevent any payment prohibited by such Section or enforce their
rights pursuant to Section 10.08(c) hereof.
The failure by any Guarantor to make a payment in respect of its
Obligations on its Guarantee by reason of any provision of this Article 10
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
Section 10.11. Application of Certain Article 11 Provisions.
The provisions of Sections 11.04, 11.07, 11.08, 11.09, 11.10, 11.12 and
11.13 hereof shall apply, mutatis mutandis, to each Guarantor and their
respective holders of Guarantor Senior Indebtedness and the rights, duties and
obligations set forth therein shall govern the rights, duties and obligations
of each Guarantor, the holders of Guarantor Senior Indebtedness, the Holders
and the Trustee with respect to the Guarantee and all references therein to
Article 11 hereof shall mean this Article 10.
ARTICLE 11
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Notes, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article 11, the Indebtedness
represented by the Notes and the payment of the principal of, premium, if any,
and interest on the Notes are hereby expressly made subordinate and subject in
right of payment as provided in this Article 11 to the prior indefeasible
payment and satisfaction in full in cash or, as acceptable to the holders of
Senior Indebtedness, in any other manner, of all existing and future Senior
Indebtedness.
This Article 11 shall constitute a continuing offer to all Persons who, in
reliance upon such provisions, become holders of or continue to hold Senior
Indebtedness; and such provisions
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are made for the benefit of the holders of Senior Indebtedness; and such
holders are made obligees hereunder and they or each of them may enforce such
provisions.
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, arrangement, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, whether voluntary or involuntary 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 general assignment for the benefit of creditors or any other
marshalling of assets or liabilities of the Company, then and in any such
event:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment and satisfaction in full in cash or, as acceptable to the holders
of Senior Indebtedness, in any other manner, of all amounts due on or in
respect of all Senior Indebtedness, or provision shall be made for such
payment, before the Holders of the Notes are entitled to receive or
retain any payment or distribution of any kind or character on account of
principal of, premium, if any, or interest on the Notes; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article 11 shall be paid by the liquidating
trustee or agent or other Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which
any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash or, as acceptable to the
holders of Senior Indebtedness, in any other manner, of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution, or provision therefor, to the holders of such
Senior Indebtedness; and
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(3) in the event that, notwithstanding the foregoing provisions of
this Section 11.02, the Trustee or the Holder of any Note shall have
received any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, including, without
limitation, by way of set-off or otherwise, in respect of principal of,
premium, if any, and interest on the Notes before all Senior Indebtedness
is paid and satisfied in full in cash or such payment thereof in cash is
provided for, then and in such event such payment or distribution upon
written notice to the Trustee or the Holder of such Note, as the case may
be, shall be held by the Trustee or the Holder of such Note, as the case
may be, in trust for the benefit of the holders of such Senior
Indebtedness and shall be immediately paid over or delivered forthwith to
the liquidating trustee or agent or other Person making payment or
distribution of assets of the Company for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay
all Senior Indebtedness in full in cash or, as acceptable to the holders
of Senior Indebtedness, any other manner, after giving effect to any
concurrent payment or distribution, or provision therefor, to or for the
holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company with
or into, another Person or the liquidation or dissolution of the Company
following the transfer of all of its assets (as an entirety or substantially as
an entirety) to another Person upon the terms and conditions set forth in
Article 5 hereof shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for the purposes of this Article 11 if
the Person formed by such consolidation or the surviving entity of such merger
or the Person which acquires by transfer such assets (as an entirety or
substantially as an entirety) shall, as a part of such consolidation, merger or
transfer, comply with the conditions set forth in such Article 5 hereof.
Section 11.03. Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 11.02 hereof shall be applicable, after the occurrence
of a Payment Default no payment or distribution of any assets or securities of
the Company or any Restricted Subsidiary of any kind or character (including,
without limitation, cash, property and any payment or distribution which may be
payable or deliverable by reason of the
<PAGE> 90
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payment of any other Indebtedness of the Company being subordinated to the
payment of the Notes by the Company) may be made by or on behalf of the Company
or any Restricted Subsidiary, including, without limitation, by way of set-off
or otherwise, for or on account of principal of, premium, if any, or interest
on the Notes, or for or on account of the purchase, redemption, defeasance or
other acquisition of the Notes, and neither the Trustee nor any holder or owner
of any Notes shall take or receive from the Company or any Restricted
Subsidiary, directly or indirectly in any manner, payment in respect of all or
any portion of Notes following the delivery by the representative of the
holders of Designated Senior Indebtedness under or in respect of the Credit
Agreement, for so long as there shall exist any Designated Senior Indebtedness
under or in respect of the Credit Agreement, and, thereafter, the holders of
Designated Senior Indebtedness (in either such case, the "Representative") to
the Trustee of written notice of (i) the occurrence of a Payment Default on
Designated Senior Indebtedness or (ii) the occurrence of a Non-Payment Event of
Default on Designated Senior Indebtedness and the acceleration of the maturity
of Designated Senior Indebtedness in accordance with its terms, and in any such
event, such prohibition shall continue until such Payment Default is cured,
waived in writing or ceases to exist or such acceleration has been rescinded or
otherwise cured. At such time as the prohibition set forth in the preceding
sentence shall no longer be in effect, subject to the provisions of the
following paragraph (b), the Company shall resume making any and all required
payments in respect of the Notes, including any missed payments.
(b) Unless Section 11.02 hereof shall be applicable, upon the occurrence
of a Non-Payment Event of Default on Designated Senior Indebtedness, no payment
or distribution of any assets or securities of the Company of any kind or
character (including, without limitation, cash, property and any payment or
distribution which may be payable or deliverable by reason of the payment of
any other Indebtedness of the Company being subordinated to the payment of the
Notes by the Company) shall be made by or on behalf of the Company, including,
without limitation, by way of set-off or otherwise, for or on account of any
principal of, premium, if any, or interest on the Notes or for or on account of
the purchase, redemption, defeasance or other acquisition of Notes, and neither
the Trustee nor any holder or owner of any Notes shall take or receive from the
Company, directly or indirectly in any manner, payment in respect of all or any
portion of the Notes, for a period (a "Payment Blockage Period") commencing on
the date of receipt by the Trustee of written notice from the Representative
of such
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Non-Payment Event of Default unless and until (subject to any blockage of
payments that may then be in effect under the preceding paragraph (a)) the
earliest to occur of the following events: (x) more than 179 days shall have
elapsed since the date of receipt of such written notice by the Trustee, (y)
such Non-Payment Event of Default shall have been cured or waived in writing or
shall have ceased to exist or such Designated Senior Indebtedness shall have
been paid in full in cash and the Trustee has been so notified by either the
Representative or the Company or (z) such Payment Blockage Period shall have
been terminated by written notice to the Company or the Trustee from the
Representative, after which, in the case of clause (x), (y) or (z), the Company
shall resume making any and all required payments in respect of the Notes,
including any missed payments. Notwithstanding any other provisions of this
Indenture, no event of default with respect to Designated Senior Indebtedness
(other than a Payment Default) which existed or was continuing on the date of
the commencement of any Payment Blockage Period initiated by the Representative
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period initiated by the Representative unless such event of default
shall have been cured or waived for a period of not less than 90 consecutive
days. In no event shall a Payment Blockage Period extend beyond 179 days from
the date of the receipt by the Trustee of the notice referred to in this
Section 11.03(b) (the "Initial Blockage Period"). Any number of additional
Payment Blockage Periods may be commenced during the Initial Blockage Period;
provided, however, that no such additional Payment Blockage Period shall extend
beyond the Initial Blockage Period. After the expiration of the Initial
Blockage Period, no Payment Blockage Period may be commenced under this Section
11.03(b) and no Guarantee Payment Blockage Period may be commenced under
Section 10.08(b) hereof until at least 180 consecutive days have elapsed from
the last day of the Initial Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Trustee or the
Holder of any Note shall have received any payment prohibited by the foregoing
provisions of this Section 11.03, then and in such event upon written notice to
the Trustee or Holder of such Note, as the case may be, such payment shall be
paid over and delivered forthwith to the Representative, in trust for
distribution to the holders of Senior Indebtedness or, if no amounts are then
due in respect of Senior Indebtedness, promptly returned to the Company, or
otherwise as a court of competent jurisdiction shall direct.
<PAGE> 92
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Section 11.04. Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and the Trustee
shall not be liable to any holder of Senior Indebtedness if it shall mistakenly
pay over or deliver to Holders, the Company or any other Person moneys or
assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article 11 or otherwise.
Section 11.05. Subrogation to Rights of Holders of Senior Indebtedness.
Upon the payment in full of all Senior Indebtedness, the Holders of the
Notes shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of,
premium, if any and interest on the Notes shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of the
Notes or the Trustee would be entitled except for the provisions of this
Article 11, and no payments over pursuant to the provisions of this Article 11
to the holders of Senior Indebtedness by Holders of the Notes or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Notes, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article 11 shall have been
applied, pursuant to the provisions of this Article 11, to the payment of all
amounts payable under the Senior Indebtedness of the Company, then and in such
case the Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of such Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of such Senior Indebtedness in full
in cash.
<PAGE> 93
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Section 11.06. Provisions Solely To Define Relative Rights.
The provisions of this Article 11 are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Notes, the obligation of
the Company, which is absolute and unconditional, to pay to the Holders of the
Notes the principal of, premium, if any, and interest on the Notes 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 Notes and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Note from exercising all remedies
otherwise permitted by applicable law upon a Default or an Event of Default
under this Indenture, subject to the rights, if any, under this Article 11 of
the holders of Senior Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding-up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Company referred to in
Section 11.02 hereof, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 11.03,
to prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 11.03(c) hereof.
The failure to make a payment on account of principal of, premium, if any,
or interest on the Notes by reason of any provision of this Article 11 shall
not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
Section 11.07. Trustee To Effectuate Subordination.
Each Holder of a Note 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, including, in the event of
any dissolution, winding-up, liquidation or reorganization of the Company
whether in bankruptcy, insolvency, receivership proceedings, or otherwise, the
timely filing of a claim for the unpaid balance of the indebtedness of the
Company owing to such Holder in the form required in such proceedings and
<PAGE> 94
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the causing of such claim to be approved. If the Trustee does not file such a
claim prior to 30 days before the expiration of the time to file such a claim,
the holders of Senior Indebtedness, or any Representative, may file such a
claim on behalf of Holders of the Notes.
Section 11.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Indebtedness 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
non-compliance 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.
(b) Without limiting the generality of subsection (a) of this Section
11.08, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article 11 or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (3) release any Person liable in any manner for the
collection or payment of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against the Company and any other Person; provided,
however, that in no event shall any such actions limit the right of the Holders
of the Notes to take any action to accelerate the maturity of the Notes
pursuant to Article 6 hereof or to pursue any rights or remedies hereunder or
under applicable laws if the taking of such action does not otherwise violate
the terms of this Indenture.
Section 11.09. Notice to Trustee.
(a) 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 at its Corporate Trust Office in respect of the Notes.
Notwithstanding the
<PAGE> 95
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provisions of this Article 11 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
Notes, unless and until the Trustee shall have received written notice thereof
from the Company or a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor or other representative thereof; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
this Section 11.09, shall be entitled in all respects to assume that no such
facts exist.
(b) Subject to the provisions of Section 7.01 hereof, the Trustee shall be
entitled to rely on the delivery to it of a written notice to the Trustee and
the Company by a Person representing itself to be a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor or other representative
thereof) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor or other representative
thereof); provided, however, that failure to give such notice to the Company
shall not affect in any way the ability of the Trustee to rely on such notice.
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
Indebtedness to participate in any payment or distribution pursuant to this
Article 11, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
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 11, 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 11, the Trustee, subject to the provisions of Section 7.01 hereof,
and the Holders shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding-up or similar
case or 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
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the Trustee or to the Holders, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of Senior
Indebtedness 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 11.
Section 11.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article 11 with respect to any Senior Indebtedness which may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article 11 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.
Section 11.12. 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 11 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 11 in addition to or in place of the Trustee.
Section 11.13. No Suspension of Remedies.
Nothing contained in this Article 11 shall limit the right of the Trustee
or the Holders of Notes to take any action to accelerate the maturity of the
Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article 11 of
the holders, from time to time, of Senior Indebtedness.
<PAGE> 97
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ARTICLE 12
MISCELLANEOUS
Section 12.01. 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 12.02. Notices.
Any notice or communication shall be given in writing and delivered in
person, sent by facsimile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
Hayes Wheels International, Inc.
38481 Huron River Drive
Romulus, Michigan 48174
Attention: [ ]
Copy to:
Attention:
If to the Trustee:
Comerica Bank
Corporate Trust Department/MC 3461
411 W. Lafayette
Detroit, Michigan 48226
Attention: Comerica Bank
Fax Number: (313) 222-2985
The Company, the Guarantors or the Trustee by written notice to the others
may designate additional or different
<PAGE> 98
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addresses for subsequent notices or communications. Any notice or
communication to the Company, the Trustee, or the Guarantors shall be deemed to
have been given or made as of the date so delivered if personally delivered;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and five (5) calendar days after mailing if sent by registered or certified
mail, postage prepaid (except that a notice of change of address shall not be
deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be mailed to him
by first-class mail, postage prepaid, at his address shown on the register kept
by the Registrar.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication to a Noteholder is mailed in the manner provided above,
it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice as required by
this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Sectoin 12.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes.
The Company, the Guarantors, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) 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
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(2) an Opinion of Counsel (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 12.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a condition
or covenant 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, it or he has
made such examination or investigation as is necessary to enable it or
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 12.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, any Guarantor or any other obligor on the Notes or by any
Affiliate of any of them shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded. Notes so owned
which have been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to the Notes and that the pledgee is not the Company, a Guarantor
or any other obligor upon the Notes or any Affiliate of any of them.
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Section 12.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
Section 12.08. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal Holiday"
is a Saturday, a Sunday, a federally-recognized holiday or a day on which
banking institutions are not required to be open in the State of New York. If
a payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
Section 12.09. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 12.11. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Noteholder by accepting a
Note waives and releases all such liability. Such waiver and release are part
of the consideration for the issuance of the Notes.
<PAGE> 101
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Section 12.12. Successors.
All agreements of the Company and the Guarantors in this Indenture and the
Notes shall bind their respective successors. All agreements of the Trustee,
any additional trustee and any Paying Agents in this Indenture shall bind its
successor.
Section 12.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent one
and the same agreement.
Section 12.14. Table of Contents, Headings, etc.
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 to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 12.15. Separability.
Each provision of this Indenture shall be considered separable and if for
any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
<PAGE> 102
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, and the Company's corporate seal to be hereunto affixed and attested,
all as of the date and year first written above.
HAYES WHEELS INTERNATIONAL, INC.
By: __________________________
Name:
Title:
ATTEST:
_________________________
Name:
Title:
Guarantors:
HAYES WHEELS INTERNATIONAL-
CALIFORNIA, INC.
HAYES WHEELS INTERNATIONAL-
GEORGIA, INC.
HAYES WHEELS INTERNATIONAL-
INDIANA, INC.
HAYES WHEELS INTERNATIONAL-
MEXICO, INC.
HAYES WHEELS INTERNATIONAL-
MICHIGAN, INC.
By: ___________________________
Name:
Title:
ATTEST:
__________________________
Name:
Title:
<PAGE> 103
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COMERICA BANK,
as Trustee
By:______________________________
Name:
Title:
ATTEST:
___________________________
Name:
Title:
<PAGE> 104
EXHIBIT A
CUSIP__________
Number
HAYES WHEELS INTERNATIONAL, INC.
[ ]% SENIOR SUBORDINATED NOTE DUE 2006
Hayes Wheels International, Inc., a Delaware corporation (the "Company",
which term includes any successor corporation), for value received promises to
pay to _______________ ______________ or registered assigns the principal sum
of ___________________ Dollars, on July 15, 2006.
Interest Payment Dates: January 15 and July 15, commencing January 15,
1997
Record Dates: January 1 and July 1
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at
this place.
A-1
<PAGE> 105
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
HAYES WHEELS INTERNATIONAL, INC.
By:_________________________________
By:_________________________________
[SEAL]
Certificate of Authentication:
This is one of the [ ]% Senior
Subordinated Notes due 2006 referred to in
the within-mentioned Indenture
Dated:
COMERICA BANK,
as Trustee
By: ___________________________________
Authorized Signatory
A-2
<PAGE> 106
(REVERSE SIDE)
HAYES WHEELS INTERNATIONAL, INC.
[ ]% SENIOR SUBORDINATED NOTE DUE 2006
1. INTEREST.
Hayes Wheels International, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note semiannually on
January 15 and July 15, of each year (each an "Interest Payment Date"),
commencing on January 15, 1997, at the rate of [ ]% per annum. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of the original
issuance of the Notes.
The Company shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at a rate equal to
the rate of interest otherwise payable on the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in Paragraph 1
above (except defaulted interest) to the person who is the registered Holder of
this Note at the close of business on the January 1 or July 1 preceding the
Interest Payment Date. The Holder must surrender this Note to a Paying Agent
to collect principal payments. The Company will pay principal, premium, if
any, and interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts; provided, however, that
the Company may pay principal, premium, if any, and interest by check payable
in such money. It may mail an interest check to the Holder's registered
address.
3. PAYING AGENT AND REGISTRAR.
Initially, Comerica Bank, a Michigan banking corporation (the "Trustee"),
will act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to the Holders of the Notes. Neither the
Company nor any of its Subsidiaries or Affiliates may act as Paying Agent but
may act as registrar or co-registrar.
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4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of July [ ],
1996 (the "Indenture") among the Company, the Guarantors and the Trustee. The
terms of this Note 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. Code
Section Section 77aaa-77bbbb) as in effect on the date of the Indenture. This
Note is subject to all such terms, and the Holder of this Note is referred to
the Indenture and said Trust Indenture Act for a statement of them. All
capitalized terms in this Note, unless otherwise defined, have the meanings
assigned to them by the Indenture.
The Notes are general unsecured obligations of the Company limited to
$250,000,000 aggregate principal amount. The Indenture imposes certain
restrictions on, among other things, the incurrence of indebtedness, the
incurrence of liens and the issuance of common stock by the Company and its
subsidiaries, mergers and sale of assets, the payments of dividends on, or the
repurchase of, capital stock of the Company and its subsidiaries, certain other
restricted payments by the Company and its subsidiaries, the creation of
subsidiaries, certain transactions with, and investments in, its affiliates,
and a provision regarding change-of-control transactions.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinated and subject in right of payment
to the prior indefeasible payment and satisfaction in full in cash of all
existing and future Senior Indebtedness as defined in the Indenture, and this
Note is issued subject to such provisions. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose.
6. OPTIONAL REDEMPTION.
The Notes will be redeemable at the option of the Company, in whole or in
part, at any time on or after July 15, 2001 at the following redemption prices
(expressed as a percentage of principal amount), together, in each case, with
accrued and unpaid interest to the redemption date, if redeemed during the
twelve-month period beginning on July 15, of each year listed below:
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Year Percentage
---------------------- ----------
2001 ................. %
2002 ................. %
2003 ................. %
2004 and thereafter .. 100%
Notwithstanding the foregoing, the Company may redeem
in the aggregate up to 35% of the original principal amount of the Notes at any
time and from time to time prior to July 15, 1999 at a redemption price equal to
_____% of the aggregate principal amount so redeemed, plus accrued interest to
the redemption date out of the Net Cash Proceeds of one or more Equity Offerings
where the proceeds to the Company of any such Equity Offering are at least $35.0
million; provided, that at least $162.5 million of the principal amount of the
Notes originally issued remain outstanding immediately after the occurrence of
any such redemption and that any such redemption occurs within 60 days following
the closing of any such Equity Offering.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first-class mail at least 30 days
but not more than 60 days prior to the redemption date to each Holder of Notes
to be redeemed at its registered address as it shall appear on the register of
the Notes maintained by the Registrar. On and after any Redemption Date,
interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used,
subject to further limitations contained therein, to make an offer to purchase
certain amounts of Notes in accordance with the procedures set forth in the
Indenture. The Company is also required to make an offer to purchase Notes
upon occurrence of a Change of Control in accordance with procedures set forth
in the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and 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 Note
selected for redemption or
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register the transfer of or exchange any Note for a period of 15 days before a
selection of Notes to be redeemed or any Note after it is called for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it for
all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Note
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company at its request. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be modified,
amended or supplemented by the Company, the Guarantors and the Trustee with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding and any existing default or compliance with any provision may
be waived in a particular instance with the consent of the Holders of a
majority in principal amount of the Notes then outstanding. Without the
consent of Holders, the Company, the Guarantors and the Trustee may amend the
Indenture or the Notes or supplement the Indenture for certain specified
purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or
making any other change that does not materially and adversely affect the
rights of any Holder.
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
14. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Notes then outstanding
may declare all the Notes to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. The
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<PAGE> 110
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a majority
in aggregate principal amount of the Notes then outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
15. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company,
any Guarantor or their Affiliates, and may otherwise deal with the Company, any
Guarantor or their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, 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 any Guarantor under the Notes
or the Indenture or for any claim based on, in respect or by reason of, such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth in
the Indenture.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a Note or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors
Act).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP Numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either
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as printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
20. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: HAYES WHEELS
INTERNATIONAL, INC., 38481 Huron River Drive, Romulus, Michigan 48174,
Attention: [ ].
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
_______________________________________________________________________________
_______________________________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: ____________________ Your Signature:___________________________
_______________________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: ____________________________________
<PAGE> 113
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Each Guarantor (the "Guarantor", which term includes any successor Person
under the Indenture) has unconditionally guaranteed, on a senior subordinated
basis, jointly and severally, to the extent set forth in the Indenture and
subject to the provisions of the Indenture, (a) the due and punctual payment of
the principal of and interest on the Notes, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on overdue
principal, and, to the extent permitted by law, interest, and the due and
punctual performance of all other Obligations of the Company to the Noteholders
or the Trustee all in accordance with the terms set forth in Article 10 of the
Indenture, and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other Obligations, that the same will be promptly paid
in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
This Guarantee shall, to the extent set forth in the Indenture, and
subject to the provisions of the Indenture, be subordinated to the prior
indefeasible payment and satisfaction in full in cash of all existing and
future Guarantor Senior Indebtedness.
The obligations of each Guarantor to the Noteholders and to the Trustee
pursuant to this 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 this Guarantee.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized signatories.
Guarantors:
HAYES WHEELS INTERNATIONAL-
CALIFORNIA, INC.
HAYES WHEELS INTERNATIONAL-
GEORGIA, INC.
HAYES WHEELS INTERNATIONAL-
INDIANA, INC.
HAYES WHEELS INTERNATIONAL-
MEXICO, INC.
HAYES WHEELS INTERNATIONAL-
MICHIGAN, INC.
By:___________________
Name:
Title:
<PAGE> 114
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.20 of the Indenture, check the
appropriate box:
/ / Section 4.15 / / Section 4.20
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.15 or Section 4.20 of the Indenture, state the amount you
elect to have purchased:
$_________________
Date: ____________
Your Signature:_______________________________
(Sign exactly as your name appears on the face
of this Note)
___________________________
Signature Guaranteed
