SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) JULY 29, 1997
INTERPOOL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 001-11862 13-3467669
(State or other jurisdiction of (Commission (IRS Employer
incorporation) File Number) ID Number)
211 COLLEGE ROAD EAST, PRINCETON, NEW JERSEY 08540
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number,
including area code: (609) 452-8900
- --------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
ITEM 5. OTHER EVENTS.
On July 29, 1997, Interpool, Inc. issued and sold to Smith Barney Inc. $150
million aggregate principal amount of 7.35% Notes Due 2007. The Notes were sold
in a private transaction pursuant to Rule 144A under the Securities Act of 1933.
Interpool expects to use the net proceeds from the issuance of the Notes,
estimated at approximately $147 million, to repay outstanding borrowings under
its revolving credit agreement and for other general corporate purposes,
including, but not limited to, the purchase of equipment, acquisitions and/or
working capital.
The Notes have not been registered under the Securities Act of 1933 and may
not be offered or sold in the United States or to any U.S. person absent
registration or an applicable exemption from registration requirements.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Business Acquired. - Not applicable.
(b) Pro Forma Financial Information. - Not applicable.
(c) Exhibits.
1.1 Purchase Agreement dated July 24, 1997, between Interpool, Inc. and
Smith Barney Inc. relating to the 7.35% Notes due 2007.
4.1 Indenture dated as of July 29, 1997, between Interpool, Inc., as
issuer and United States Trust Company of New York, as trustee,
relating to the 7.35% Notes due 2007.
4.2 Registration Rights Agreement dated as of July 29, 1997, between
Interpool, Inc. and Smith Barney Inc.
99.1 Press Release dated July 25, 1997.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INTERPOOL, INC.
By: /s/ Martin Tuchman
Name: Martin Tuchman
Title: Chairman of the Board and
Chief Executive Officer
Dated: July 30, 1997
EXHIBIT 1.1
$150,000,000
7.35% Notes due 2007
Interpool, Inc.
PURCHASE AGREEMENT
July 24, 1997
SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Interpool, Inc., a Delaware corporation (the "Company"), confirms its
agreement with Smith Barney Inc. ("Smith Barney" or the "Initial Purchaser"),
with respect to the issue and sale by the Company and the purchase by the
Initial Purchaser of $150,000,000 aggregate principal amount of 7.35% Notes due
2007 of the Company (the "Original Securities"). The Original Securities will be
issued pursuant to an indenture, to be dated as of July 29, 1997 (the
"Indenture"), between the Company and United States Trust Company of New York,
as trustee (the "Trustee").
The Original Securities will be entitled to the registration rights set
forth in the Registration Rights Agreement (the "Registration Rights
Agreement"), to be executed on and dated as of the Closing Time (as defined in
Section 2(b) hereof). Pursuant to the Registration Rights Agreement, the Company
will agree, among other things, to file with the Securities and Exchange
Commission (the "Commission") (i) a registration statement (the "Exchange Offer
Registration Statement") under the Securities Act of 1933, as amended (the "1933
Act") relating to another series of 7.35% Notes due 2007 of the Company (the
"Exchange Securities"), to be offered in exchange for the Original Securities
(such offer to exchange being referred to as the "Exchange Offer") and/or (ii) a
shelf registration statement pursuant to Rule 415 under the 1933 Act (the "Shelf
Registration Statement") relating to the resale by certain holders of the
Original Securities. The Company will be obligated to pay certain liquidated
damages in respect of the Original Securities if the Company fails to comply
with certain provisions of the Registration Rights Agreement concerning the
filing and effectiveness of the Shelf Registration Statement.
The Original Securities and the Exchange Securities are jointly referred to
as the "Securities". The Indenture, the Registration Rights Agreement, the DTC
Agreement (as hereinafter defined) and this Agreement are hereinafter referred
to collectively as the "Operative Documents."
The Company understands that the Initial Purchaser proposes to make an
offering (the "Offering") of the Original Securities on the terms and in the
manner set forth herein and agrees that the Initial Purchaser may resell,
subject to the conditions set forth herein, all or a portion of the Original
Securities to purchasers ("Subsequent Purchasers") at any time after the date of
this Agreement. The Original Securities are to be offered and sold through the
Initial Purchaser without being registered under the 1933 Act, in reliance upon
exemptions therefrom. Pursuant to the terms of the Original Securities,
investors that acquire Original Securities may resell or otherwise transfer such
Original Securities only if such Original Securities are hereafter registered
under the 1933 Act or if an exemption from the registration requirements of the
1933 Act is available (including the exemption afforded by Rule 144A ("Rule
144A") of the rules and regulations promulgated under the 1933 Act by the
Commission).
It is understood and acknowledged that upon original issuance thereof, and
until such time as the same is no longer required under the applicable
requirements of the 1933 Act, the Original Securities shall bear the following
legend:
THE NOTES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER
THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER THIS NOTE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS NOTE
(OR ANY PREDECESSOR OF THIS NOTE) ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) SO LONG AS THE THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
(E) IN A MINIMUM PRINCIPAL AMOUNT OF $100,000 TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2),
(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO THE COMPANY AND (ii) PURSUANT TO CLAUSE
(E) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE COMPANY A LETTER
FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE
OFFERING MEMORANDUM DATED JULY 24, 1997. SUCH HOLDER FURTHER AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
The Company has prepared and delivered to the Initial Purchaser copies of a
preliminary offering memorandum dated July 17, 1997 (the "Preliminary Offering
Memorandum") and has prepared and will deliver to the Initial Purchaser, on the
date hereof or the next succeeding day, copies of a final offering memorandum
dated July 24, 1997 (the "Final Offering Memorandum"), each for use by the
Initial Purchaser in connection with its solicitation of purchases of, or
offering of, the Original Securities. "Offering Memorandum" means, with respect
to any date or time referred to in this Agreement, the most recent offering
memorandum (whether the Preliminary Offering Memorandum or the Final Offering
Memorandum, or any amendment or supplement to either such document), including
exhibits thereto and any documents incorporated therein by reference, which has
been prepared and delivered by the Company to the Initial Purchaser in
connection with its solicitation of purchases of, or offering of, the Original
Securities.
Unless otherwise indicated, all references in this Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" in the Offering Memorandum (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information which are incorporated by reference in the Offering
Memorandum; and all references in this Agreement to amendments or supplements to
the Offering Memorandum shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the "1934 Act")
which is incorporated by reference in the Offering Memorandum.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Initial Purchaser as of the date
hereof and as of the Closing Time, and agrees with the Initial Purchaser as
follows:
(a) The Company has not, directly or indirectly, solicited any offer to buy
or offered to sell, and will not, directly or indirectly, solicit any offer to
buy or offer to sell, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale of the
Original Securities in a manner that would require the Original Securities to be
registered under the 1933 Act.
(b) The Offering Memorandum does not, and at the Closing Time will not,
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in or
omissions from the Offering Memorandum made in reliance upon and in conformity
with information furnished to the Company in writing by or on behalf of Smith
Barney expressly for use in the Offering Memorandum.
(c) The documents incorporated or deemed to be incorporated by reference in
the Offering Memorandum at the time they were or hereafter are filed with the
Commission complied or will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read together with the other
information in the Offering Memorandum, at the date of the Offering Memorandum
and at the Closing Time, do not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) The accountants who certified the financial statements and supporting
schedules included in the Offering Memorandum (by reference or otherwise) are
independent certified public accountants with respect to the Company and its
subsidiaries within the meaning of Regulation S-X under the 1933 Act.
(e) The financial statements of the Company and its consolidated
subsidiaries, together with the related schedules and notes, included in the
Offering Memorandum (by incorporation, reference or otherwise) present fairly
the financial position of the Company and its consolidated subsidiaries, at the
dates indicated and the results of operations, shareholders' equity and cash
flows of the Company and its consolidated subsidiaries for the periods specified
and have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Offering Memorandum
present fairly in accordance with GAAP the information required to be stated
therein. The summary financial information included in Offering Memorandum
present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Offering Memorandum (by incorporation, reference or otherwise). The pro forma
financial information included in the Offering Memorandum (by incorporation,
reference or otherwise) presents fairly the information shown therein, has been
prepared in accordance with the Commission's rules and guidelines with respect
to pro forma financial information and has been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(f) Since the respective dates as of which information is given in the
Offering Memorandum, except as otherwise stated therein, and except for normal
recurring dividends on the capital stock of the Company, there has not been (A)
any material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course of
business, (B) any transaction entered into by the Company or any subsidiary,
other than in the ordinary course of business, that is material to the Company
and its subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock (other than any normal dividends payable on the Company's
common stock or preferred stock).
(g) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the corporate
power and authority under such laws to own, lease and operate its properties and
to conduct its business as described in the Offering Memorandum and to enter
into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(h) Each "significant subsidiary" of the Company (as such term is defined
in Rule 1-02 of Regulation S-X) is identified on Schedule A hereto (each a
"Significant Subsidiary" and collectively, the "Significant Subsidiaries") and
is duly organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, and has full power and
authority to own, lease and operate its properties and to conduct business as
described in the Offering Memorandum and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not have a material adverse effect on
the Company and its subsidiaries, considered as one enterprise; all of the
outstanding shares of capital stock of each Significant Subsidiary have been
duly authorized and validly issued, are fully paid and non-assessable and are
owned by the Company, directly or through its subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of the Significant Subsidiaries
was issued in violation of any preemptive or similar rights arising by operation
of law, or under the charter or by-laws of any Significant Subsidiary or under
any agreement to which the Company or any Significant Subsidiary is a party. The
subsidiaries of the Company other than the Significant Subsidiaries, considered
in the aggregate as a single subsidiary, do not constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
(i) The Company does not have any subsidiaries which are material to its
business, except to the extent that one or more of the Significant Subsidiaries
may be deemed to be so material.
(j) (A) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Offering Memorandum, (B) all of
the outstanding shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable, and (C) none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive rights of any stockholder of the Company.
(k) The Company has all requisite power and authority to execute, deliver
and perform its obligations under this Agreement and the Registration Rights
Agreement; the execution and delivery of, and the performance by the Company of
its obligations under, this Agreement and the Registration Rights Agreement have
been duly and validly authorized by the Company, and this Agreement has been,
and at the Closing Time the Registration Rights Agreement will have been, duly
executed and delivered by the Company and will constitute valid and legally
binding agreements of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles (regardless of whether considered in a proceeding in equity or at
law).
(l) The Indenture has been duly authorized by the Company and, at the
Closing Time, will have been duly executed and delivered by the Company and will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles (regardless of whether considered in a proceeding
in equity or at law).
(m) The Original Securities have been duly authorized by the Company and,
at the Closing Time, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered against
payment therefor as described in the Offering Memorandum, will constitute valid
and binding obligations of the Company, and the Exchange Securities have been
duly authorized by the Company and, when duly executed by the Company and
authenticated in the manner provided for in the Indenture, will constitute valid
and binding obligations of the Company, in each case, enforceable against the
Company in accordance with their terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles (regardless of whether considered in a proceeding
in equity or at law); and the Securities will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
(n) The Company is not, and following issuance of the Securities and the
consummation of the transactions contemplated hereby (including the use of
proceeds of the sale of the Original Securities, as described in the Offering
Memorandum under the caption "Use of Proceeds") will not be, an "investment
company" or an entity "controlled" by an "investment company" which is required
to be registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(o) The Operative Documents and the Securities will conform in all material
respects to the summary descriptions thereof contained in the Offering
Memorandum.
(p) None of the Company nor any of its subsidiaries is in violation of its
charter or by-laws or is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, deed of trust, mortgage, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which any of them may be bound or to which any of the property or
assets of the Company or any of its subsidiaries may be subject (collectively,
"Agreements and Instruments"), except for such defaults that would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise; the execution and delivery of the Operative
Documents by the Company, the issuance and delivery of the Securities, the
consummation by the Company of the transactions contemplated in the Operative
Documents (including the use of proceeds of the sale of the Original Securities,
as described in the Offering Memorandum under the caption "Use of Proceeds") and
compliance by the Company with the terms of the Operative Documents have been
duly authorized by all necessary corporate action on the part of the Company and
do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or a Repayment
Event (as defined below) or result in any violation of the charter or by-laws of
the Company or any subsidiary thereof, and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary thereof
under (A) any indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any subsidiary thereof is a
party or by which it may be bound or to which any of its properties may be
subject, except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, nor will such
action result in any violation of the provisions of charter or by-laws of the
Company or any of its subsidiaries or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary thereof or any of their assets or properties. As used
herein, a "Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(q) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, other than those that have been made or obtained, is necessary or
required for the performance by the Company of its obligations hereunder, in
connection with the issuance and sale of the Securities or the consummation of
the transactions contemplated by the Operative Documents (except such as may be
required in connection with the registration under the 1933 Act of the Exchange
Securities in accordance with the Registration Rights Agreement, qualification
of the Indenture under the 1939 Act and compliance with the securities or Blue
Sky laws of various jurisdictions).
(r) There is no action, suit, proceeding, inquiry or investigation before
or by any government, governmental instrumentality or court, domestic or
foreign, now pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which would be required to be
described in the Offering Memorandum (or a document incorporated by reference
therein) if the Offering Memorandum were a registration statement on Form S-3
under the 1933 Act (other than as disclosed therein) or which might reasonably
be expected to result in any material adverse change in the condition (financial
or otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, or which might reasonably be
expected to materially and adversely affect the properties or assets of the
Company and its subsidiaries considered as one enterprise, or might reasonably
be expected to adversely affect the issuance of the Securities or the
consummation of the transactions contemplated in the Operative Documents; the
aggregate liability or loss, if any, resulting from the final outcome of all
pending legal or governmental proceedings to which the Company or any subsidiary
thereof is a party or which affect any of its properties that are not described
in the Offering Memorandum, including ordinary routine litigation incidental to
its business, would not reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(s) The Company and each of its subsidiaries owns, possesses or has
obtained all material governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business as
presently conducted, and neither the Company nor any subsidiary thereof has
received any notice of proceedings relating to revocation or modification of any
such licenses, permits, certificates, consents, orders, approvals or
authorizations that, in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially adversely affect the condition
(financial or otherwise), earnings, business or operations of the Company and
its subsidiaries, considered as one enterprise.
(t) Each of the Company and the Significant Subsidiaries has good and
marketable title to all property (real and personal) described in the Offering
Memorandum as being owned by it, free and clear of all liens, claims, security
interests or other encumbrances except such as (A) are described in the Offering
Memorandum, (B) are liens for taxes not yet due or (C) are neither material in
amount nor materially significant in relation to the business of the Company and
its subsidiaries considered as one enterprise; and all of the leases and
subleases material to the business of the Company and its subsidiaries
considered as one enterprise, and under which the Company or any subsidiary
thereof holds properties described in the Offering Memorandum, are in full force
and effect, and neither the Company nor any subsidiary thereof has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary thereof under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such entity
to the continued possession of the leased or subleased premises and assets under
any such lease or sublease.
(u) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(v) Neither the Company nor the subsidiaries of the Company nor, to the
Company's knowledge, any employee or agent of the Company or any subsidiary of
the Company has made any payment of funds of the Company or any such subsidiary
or received or retained any funds in violation of any law, rule or regulation,
which violation would have a material adverse effect on the condition (financial
or otherwise), earnings, business or operations of the Company and its
subsidiaries, considered as one enterprise.
(w) The Company and its subsidiaries have filed all federal, state, local
and foreign tax returns that are required to be filed or have duly requested
extensions thereof and have paid all taxes required to be paid by any of them
and any related assessments, fines or penalties, except for any such tax,
assessment, fine or penalty that is being contested in good faith and by
appropriate proceedings; and adequate charges, accruals and reserves have been
provided for in the financial statements referred to in Section 1(e) above in
respect of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not been
finally determined or remains open to examination by applicable taxing
authorities.
(x) No holder of any security of the Company has any right to request or
demand registration of shares of Common Stock or any other security of the
Company because of the consummation of the transactions contemplated by this
Agreement or the Registration Rights Agreement. Except as described in or
contemplated by the Offering Memorandum, there are no outstanding options,
warrants or other rights calling for the issuance of, and there are no
commitments, plans or arrangements to issue, any shares of capital stock of the
Company or any security convertible into or exchangeable or exercisable for
capital stock of the Company.
(y) The Company has not taken and will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or result
in stabilization or manipulation of the price of any of the Securities.
(z) When the Original Securities are issued and delivered pursuant to this
Agreement, such Original Securities will not be of the same class as any
security of the Company listed on a national securities exchange registered
under Section 6 of the 1934 Act or quoted in a U.S. automated interdealer
quotation system.
(aa) None of the Company or any of its affiliates, as such term is defined
in Rule 501(b) under the 1933 Act ("Affiliates"), or any person acting on its or
any of their behalf (other than the Initial Purchaser, as to whom the Company
makes no representation) has engaged or will engage, in connection with the
offering of the Original Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the 1933 Act.
(ab) Subject to compliance by the Initial Purchaser with the
representations and warranties set forth in Section 2 and the procedures set
forth in Section 6 hereof, except in connection with the filing of a
registration statement to effect the Exchange Offer or the filing of the Shelf
Registration Statement as contemplated by the Registration Rights Agreement, it
is not necessary in connection with the offer, sale and delivery of the Original
Securities to the Initial Purchaser and to each Subsequent Purchaser in the
manner contemplated by this Agreement and the Offering Memorandum to register
the Original Securities under the 1933 Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
(ac) None of the Company or its subsidiaries does business with the
government of Cuba or with any person located in Cuba.
(ad) Interpool Limited is an "international business company" under the
International Business Companies Act, 1991 of Barbados.
(ae) Except as disclosed in the documents incorporated by reference into
the Offering Memorandum, there are no business relationships or related party
transactions required to be disclosed therein by Item 404 of Regulation S-K of
the Commission.
SECTION 2. SALE AND DELIVERY TO INITIAL PURCHASER; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Initial Purchaser, and the Initial Purchaser agrees to purchase from the
Company, at a purchase price of 98.734% of the principal amount thereof,
$150,000,000 aggregate principal amount of Original Securities.
(b) Payment of the purchase price for, and delivery of certificates for the
Original Securities shall be made at the office of Skadden, Arps, Slate, Meagher
& Flom LLP in New York, or at such other place as shall be agreed upon by Smith
Barney and the Company, at 9:00 a.m. New York City time on July 29, 1997, or
such other time not later than ten business days after such date as shall be
agreed upon by Smith Barney and the Company (such time and date of payment and
delivery being herein called the "Closing Time").
Payment for the Original Securities purchased by the Initial Purchaser
shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company, against delivery to the Initial
Purchaser of certificates for the Original Securities, if any are to be
purchased by them. Certificates for the Original Securities shall be in such
denominations and registered in such names as the Initial Purchaser may request
in writing at least one business day before the Closing Time. The certificates
representing the Original Securities which are not resold to institutional
"accredited investors" shall be registered in the name of Cede & Co. pursuant to
the representation letters of the Company to The Depository Trust Company
("DTC") relating to the approval of the Securities by DTC for "book entry"
transfer (the "DTC Agreement") and shall be made available for examination and
packaging by the Initial Purchaser in The City of New York not later than 10:00
A.M. on the last business day prior to the Closing Time.
(c) The Initial Purchaser represents and warrants to, and agrees with, the
Company that it is a Qualified Institutional Buyer (as defined in Section
6(a)(i)) and an Institutional Accredited Investor (as defined in Section
6(a)(i)).
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the Initial
Purchaser as follows:
(a) The Company, as promptly as possible, will furnish to the Initial
Purchaser, without charge, such number of copies of the Preliminary Offering
Memorandum, the Final Offering Memorandum and any amendments and supplements
thereto and documents incorporated by reference therein as the Initial Purchaser
may reasonably request.
(b) The Company will promptly notify the Initial Purchaser, and confirm
such notice in writing, of (x) any filing made by the Company of information
relating to the offering of the Original Securities with any securities exchange
or any other regulatory body in the United States or any other jurisdiction, and
(y) prior to the completion of the placement of the Original Securities by the
Initial Purchaser as evidenced by a notice in writing from the Initial Purchaser
to the Company, any material change in the condition (financial or other),
business, operations, properties, net worth or results of operations of the
Company and its subsidiaries considered as one enterprise, or of the happening
of any event which makes any statement made in the Offering Memorandum (as then
amended or supplemented) untrue in any material respect or which requires the
making of any additions to or changes in the Offering Memorandum (as then
amended or supplemented) in order to make the statements therein not misleading,
or of the necessity to amend or supplement the Offering Memorandum (as then
amended or supplemented) to comply with any law. In such event or if during such
time any event shall occur as a result of which it is necessary, in the
reasonable opinion of the Company, its counsel, the Initial Purchaser or counsel
for the Initial Purchaser, to amend or supplement the Final Offering Memorandum
in order that the Final Offering Memorandum not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances then
existing, or to comply with any law, the Company will forthwith amend or
supplement the Final Offering Memorandum by preparing and furnishing to the
Initial Purchaser an amendment or amendments of, or a supplement or supplements
to, the Final Offering Memorandum (in form and substance satisfactory in the
reasonable opinion of counsel for the Initial Purchaser) so that, as so amended
or supplemented, the Final Offering Memorandum will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time it is delivered to a Subsequent Purchaser, not misleading, or will
comply with any such law.
(c) The Company will advise the Initial Purchaser promptly of any proposal
to amend or supplement the Offering Memorandum and will not effect such
amendment or supplement without the consent of the Initial Purchaser (which
consent shall not be unreasonably withheld), except that no such consent shall
be required in connection with the filing of required reports pursuant to the
1934 Act or 1934 Act Regulations. Neither the consent of the Initial Purchaser,
nor the Initial Purchaser's delivery of any such amendment or supplement, shall
constitute a waiver of any of the conditions set forth in Section 5 hereof.
(d) The Company shall use its best efforts, in cooperation with the Initial
Purchaser, to qualify the Securities for offering and sale under the applicable
securities laws of such jurisdictions as the Initial Purchaser may designate and
will maintain such qualifications in effect as long as required for the sale of
the Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject.
(e) For the period of three years from the date hereof, the Company will
furnish to the Initial Purchaser as soon as available, a copy of each report of
the Company mailed to shareholders or filed with any stock exchange or
regulatory body.
(f) The Company shall take all reasonable action necessary to enable
Standard & Poor's Rating Services ("S&P") and Moody's Investors Service, Inc.
("Moody's") to provide their respective credit ratings of the Securities.
(g) The Company will cooperate with the Initial Purchaser and use its
reasonable best efforts to permit the Original Securities to be eligible for
clearance and settlement through the facilities of DTC.
(h) The Company will use net proceeds received by it from the sale of the
Original Securities in the manner described in the Offering Memorandum under
"Use of Proceeds."
(i) During a period of 180 days from the date of the Offering Memorandum,
the Company will not issue, sell, contract to sell, or otherwise dispose of any
securities that are substantially similar to the Securities or that are
convertible into, exchangeable or exercisable for, or otherwise represent a
right to acquire, any such securities, except in the Offering or pursuant to the
Exchange Offer or with the prior written consent of Smith Barney.
(j) The Company agrees to comply with all the terms and conditions of the
Registration Rights Agreement and the DTC Agreement.
SECTION 4. PAYMENT OF EXPENSES.
(a) Expenses. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by the Company of
its obligations hereunder: (i) the preparation, printing or reproduction of the
Preliminary Offering Memorandum and the Final Offering Memorandum (including
financial statements thereto), and each amendment or supplement to either of the
Preliminary Offering Memorandum or the Final Offering Memorandum, this
Agreement, the other Operative Documents and such other documents as may be
required in connection with the offering, purchase, sale and delivery of the
Securities; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Offering Memorandum, the Preliminary Offering Memorandum, all documents
incorporated therein by reference, and all amendments or supplements to any of
them as may be reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Original Securities, including any
stamp taxes in connection with the original issuance and sale of the Original
Securities and any charges of DTC in connection therewith; (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v)
rating agency fees, (vi) the qualification of the Securities under the
securities or Blue Sky laws of the several states in accordance with the
provisions of Section 3(d) hereof, including filing fees and the reasonable fees
and disbursements, if any, of counsel for the Initial Purchaser in connection
therewith and in connection with the preparation, printing and delivery to the
Initial Purchaser of the Blue Sky Survey and any supplement thereto, (vii) the
performance by the Company of its obligations under the Registration Rights
Agreement and (viii) the fees and expenses of the Trustee, including the
reasonable fees and disbursements of counsel for the Trustee.
(b) Termination of Agreement. If this Agreement is terminated by the
Initial Purchaser in accordance with the provisions of Section 5 or Section
8(a)(i) hereof, the Company shall reimburse the Initial Purchaser for all of its
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Initial Purchaser.
SECTION 5. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations
of the Initial Purchaser hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to the following further conditions:
(a) Order or Decree. At the time of execution of this Agreement and at the
Closing Time, no order or decree preventing the use of the Offering Memorandum
or any amendment or supplement thereto, or any order asserting that the
transactions contemplated by this Agreement are subject to the registration
requirements of the 1933 Act shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending or, to the knowledge of
the Company, be contemplated. No stop order suspending the sale of the
Securities in any jurisdiction designated by the Initial Purchaser shall have
been issued and no proceedings for that purpose shall have been commenced or
shall be pending or, to the knowledge of the Company, shall be contemplated.
(b) Material Adverse Effect. Subsequent to the effective date of this
Agreement, there shall not have occurred (i) any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
condition (financial or other), business, properties, net worth, or results of
operations of the Company or any of its subsidiaries not contemplated by the
Offering Memorandum, which in the opinion of the Initial Purchaser, would
materially adversely affect the market for the Securities, or (ii) any event or
development relating to or involving the Company or any officer or director of
the Company which makes any statement made in the Offering Memorandum untrue in
any material respect or which, in the opinion of the Company and its counsel or
the Initial Purchaser and its counsel, requires the making of any addition to or
change in the Offering Memorandum in order to state a material fact required by
any law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Offering Memorandum to
reflect such event or development would, in the opinion of the Initial
Purchaser, materially adversely affect the market for the Securities.
(c) Opinion of Counsel for the Company. The Initial Purchaser shall have
received, at the Closing Time, the favorable opinion of Stroock & Stroock &
Lavan LLP, counsel for the Company, dated as of the Closing Time and addressed
to the Initial Purchaser, to the effect set forth in Exhibit A hereto, and to
such further effect as counsel for the Initial Purchaser may reasonably request.
(d) Opinion of General Counsel. The Initial Purchaser shall have received,
as of the Closing Time, an opinion of Arthur L. Burns, Esq., General Counsel of
the Company, dated as of the Closing Time and addressed to the Initial Purchaser
to the effect set forth in Exhibit B hereto, and to such further effect as
counsel for the Initial Purchaser may reasonably request.
(e) Opinion of Special Barbados Counsel for Interpool Limited. The Initial
Purchaser shall have received, as of the Closing Time, an opinion of David King
& Co., special Barbados counsel to Interpool Limited, dated as of the Closing
Time, and addressed to the Initial Purchaser to the effect set forth in Exhibit
C hereto and to such further effect as counsel for the Initial Purchaser may
reasonably request.
(f) Opinion of Counsel for Initial Purchaser. The Initial Purchaser shall
have received, as of the Closing Time, an opinion of Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for the Initial Purchaser, dated as of the Closing
Time, in form and substance reasonably satisfactory to the Initial Purchaser.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(g) Certificates. As of the Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Offering Memorandum, any material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Initial Purchaser shall have
received a certificate of the Chairman, any Vice Chairman, the Chief Executive
Officer, the President or any Vice President of the Company and of the Chief
Financial Officer, the Chief Accounting Officer or the Treasurer of the Company,
dated as of the Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
hereof were true and correct in all material respects when made and are true and
correct in all material respects with the same force and effect as though
expressly made at and as of the Closing Time, and (iii) the Company has complied
in all material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time.
(h) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Initial Purchaser shall have received from Arthur Anderson LLP a
letter or letters dated such date, in form and substance reasonably satisfactory
to the Initial Purchaser, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to initial purchasers with
respect to the financial statements and certain financial information contained
in the Offering Memorandum.
(i) Bring-down Comfort Letters. As of the Closing Time, the Initial
Purchaser shall have received from Arthur Anderson LLP a letter or letters,
dated as of the Closing Time, to the effect that Arthur Anderson LLP reaffirms
the statements made in its letter or letters furnished pursuant to subsection
(h) of this Section, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Time.
(j) Compliance with Agreements. The Company shall not have failed at or
prior to the Closing Time to have performed or complied in all material respects
with any of its agreements herein contained and required to be performed or
complied with by it hereunder at or prior to the Closing Time.
(k) Maintenance of Rating. As of the Closing Time, the Original Securities
shall be rated at least "Ba1" by Moody's and "BB+" by S&P and the Company shall
have delivered to the Initial Purchaser a letter dated the Closing Time, from
each such rating agency, or other evidence satisfactory to the Initial
Purchaser, confirming that the Original Securities have such ratings; and
between the date of this Agreement and the Closing Time, there shall not have
occurred a downgrading in the rating assigned to the Original Securities or any
of the Company's other securities by any nationally recognized statistical
rating organization, and no such organization shall have publicly announced that
it has under surveillance or review for possible downgrading its rating of any
of the Original Securities or any of the Company's other securities.
(l) Additional Documents. The Company shall have furnished or caused to be
furnished to the Initial Purchaser such further certificates and documents as
the Initial Purchaser shall have reasonably requested. All such opinions,
certificates, letters and other documents will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance
to the Initial Purchaser and counsel for the Initial Purchaser. Any certificate
signed by any officer of the Company and delivered to the Initial Purchaser, or
to counsel for the Initial Purchaser, shall be deemed a representation and
warranty by the Company to the Initial Purchaser as to the statements made
therein.
(m) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Initial Purchaser by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 7, 8 and 9 shall survive any such termination and remain in
full force and effect.
SECTION 6. SUBSEQUENT OFFERS AND SALES OF THE ORIGINAL SECURITIES.
(a) Offer and Sale Procedures. The Initial Purchaser and the Company hereby
establish and agree to observe the following procedures in connection with the
offer and sale of the Original Securities:
(i) OFFERS AND SALES ONLY TO INSTITUTIONAL ACCREDITED INVESTORS
AND QUALIFIED INSTITUTIONAL BUYERS. Offers and sales of the Original
Securities will be made only by the Initial Purchaser or Affiliates
thereof qualified to do so in the jurisdictions in which such offers
or sales are made. Each such offer or sale shall only be made (A) to
persons whom the offeror or seller reasonably believes to be qualified
institutional buyers (as defined in Rule 144A) ("Qualified
Institutional Buyers"), or (B) to a limited number of other
institutional accredited investors (as such term is defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D) that the offeror or seller
reasonably believes to be and, with respect to sales and deliveries,
that are accredited investors ("Institutional Accredited Investors").
(ii) NO GENERAL SOLICITATION. The Original Securities will be
offered by approaching prospective Subsequent Purchasers on an
individual basis. No general solicitation or general advertising
(within the meaning of Rule 502(c) under the 1933 Act) will be used in
the United States in connection with the offering of the Original
Securities.
(iii) PURCHASES BY NON-BANK FIDUCIARIES. In the case of a
non-bank Subsequent Purchaser of an Original Security acting as a
fiduciary for one or more third parties, in connection with an offer
and sale to such purchaser pursuant to clause (a) above, each third
party shall, in the judgment of the Initial Purchaser, be an
Institutional Accredited Investor or a Qualified Institutional Buyer
or a non-U.S. person outside the United States.
(iv) SUBSEQUENT PURCHASER NOTIFICATION. The Initial Purchaser
will take reasonable steps to inform, and cause each of its U.S.
Affiliates to take reasonable steps to inform, persons acquiring
Original Securities from the Initial Purchaser or such affiliate, as
the case may be, in the United States that the Original Securities (A)
have not been and will not be registered under the 1933 Act, (B) are
being sold to them without registration under the 1933 Act in reliance
on Rule 144A or in accordance with another exemption from registration
under the 1933 Act, as the case may be, and (C) may not be offered,
sold or otherwise transferred except (1) to the Company or (2) in
accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) an exemption
from registration under the 1933 Act (including the exemptions
afforded by Rule 144 or Regulation S), if available.
(v) MINIMUM AMOUNT. No sale of the Original Securities to any one
Subsequent Purchaser who is an Institutional Accredited Investor will
be in denominations of less than U.S. $100,000 principal amount.
(vi) RESTRICTIONS ON TRANSFER. The transfer restrictions and the
other provisions of the Indenture, including the legend required
thereby, shall apply to the Original Securities except as otherwise
agreed by the Company and the Initial Purchaser. Following the sale of
the Original Securities by the Initial Purchaser to Subsequent
Purchasers pursuant to the terms hereof, the Initial Purchaser shall
not be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any losses,
damages or liabilities under the 1933 Act, arising from or relating to
any resale or transfer of any Original Security.
(vii) DELIVERY OF OFFERING MEMORANDUM. The Initial Purchaser will
deliver to each purchaser of the Original Securities, in connection
with its original distribution of the Original Securities, a copy of
the Offering Memorandum, as amended and supplemented at the date of
such delivery.
(b) Covenants of the Company. The Company covenants with the Initial
Purchaser as follows:
(i) DUE DILIGENCE. In connection with the original distribution
of the Original Securities, the Company agrees that, prior to any
offer or sale of the Original Securities by the Initial Purchaser, the
Initial Purchaser and counsel for the Initial Purchaser shall have the
right to make reasonable inquiries into the business of the Company
and its subsidiaries. The Company also agrees to provide answers to
each prospective Subsequent Purchaser of Original Securities who so
requests concerning the Company and its subsidiaries (to the extent
that such information is available or can be acquired and made
available to prospective Subsequent Purchasers without unreasonable
effort or expense and to the extent the provision thereof is not
prohibited by applicable law) and the terms and conditions of the
offering of the Securities, as provided in the Offering Memorandum.
(ii) INTEGRATION. The Company agrees that it will not and will
cause its Affiliates not to make any offer or sale of securities of
the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer
or sale would render invalid (for the purpose of (i) the sale of the
Original Securities by the Company to the Initial Purchaser, (ii) the
resale of the Original Securities by the Initial Purchaser to
Subsequent Purchasers or (iii) the resale of the Original Securities
by such Subsequent Purchasers to others) the exemption from the
registration requirements of the 1933 Act provided by Section 4(2)
thereof or by Rule 144A thereunder or otherwise.
(iii) RULE 144A INFORMATION. The Company agrees that, in order to
render the Original Securities eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Original Securities remain
outstanding, the Company will make available, upon request, to any
holder of Original Securities or prospective purchasers of Original
Securities the information specified in Rule 144A(d)(4), unless such
information is furnished to the Commission pursuant to Section 13 or
15(d) of the 1934 Act.
(iv) RESTRICTION ON REPURCHASES. Until the expiration of two
years (or such shorter period as may hereafter be referred to in Rule
144(k) (or similar successor rule)) after the original issuance of the
Original Securities, the Company will not, and will cause its
Affiliates not to, purchase or agree to purchase or otherwise acquire
any Original Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the 1933 Act), whether as
beneficial owner or otherwise unless, immediately upon any such
purchase, the Company or any Affiliate shall submit such Securities to
the Trustee for cancellation.
(c) Resale Pursuant to Rule 144A. The Initial Purchaser understands that
the Original Securities have not been and will not be registered under the 1933
Act and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except pursuant to an exemption from the
registration requirements of the 1933 Act. The Initial Purchaser represents and
agrees, that, except as permitted below it has offered and sold Original
Securities and will offer and sell Original Securities only in accordance with
Rule 144A under the 1933 Act or to Institutional Accredited Investors.
The Initial Purchaser represents and agrees that it has not entered and
will not enter into any contractual arrangements with respect to the
distribution of the Original Securities, except with its affiliates or with the
prior written consent of the Company.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification of Initial Purchaser. The Company agrees to indemnify
and hold harmless the Initial Purchaser, each agent, employee, officer and
director of the Initial Purchaser and each person, if any, who controls any of
the foregoing persons within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and each agent, employee, officer and director of
any such controlling person (each of the foregoing, an "Initial Purchaser
Indemnified Person") from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or Offering
Memorandum or in any amendment or supplement thereto, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information furnished in writing to the
Company by or on behalf of the Initial Purchaser expressly for use therein;
provided, however, that the indemnification contained in this paragraph (a) with
respect to the Preliminary Offering Memorandum shall not inure to the benefit of
the Initial Purchaser (or to the benefit of any Initial Purchaser Indemnified
Person) on account of any such loss, claim, damage, liability or expense arising
from the sale of Original Securities by the Initial Purchaser to any person if
the untrue statement or alleged untrue statement or omission or alleged omission
of a material fact contained in the Preliminary Offering Memorandum was
corrected in the Offering Memorandum and the Initial Purchaser sold Original
Securities to that person without sending or giving at or prior to the written
confirmation of such sale, a copy of the Offering Memorandum (as then amended or
supplemented) if the Company has previously furnished sufficient copies thereof
to the Initial Purchaser on a timely basis. The foregoing indemnity agreement
shall be in addition to any liability which the Company may otherwise have.
(b) Action Against Initial Purchaser; Notification. If any action, suit or
proceeding shall be brought against an Initial Purchaser Indemnified Person in
respect of which indemnity may be sought against the Company, such Initial
Purchaser Indemnified Person shall promptly notify the Company (the
"indemnifying parties"), and such indemnifying parties shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Initial Purchaser Indemnified Person shall have the right to
employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Initial Purchaser Indemnified Person unless (i)
the indemnifying parties have agreed in writing to pay such fees and expenses,
(ii) the indemnifying parties have failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Initial Purchaser
Indemnified Person and the indemnifying parties and such Initial Purchaser
Indemnified Person shall have been advised by its counsel that representation of
such indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Initial Purchaser Indemnified Person). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for such Initial Purchaser Indemnified Persons, which firm
shall be designated in writing by the Initial Purchaser, and that all such fees
and expenses shall be reimbursed on a monthly basis as provided in paragraph (a)
hereof. The indemnifying parties shall not be liable for any settlement of any
such action, suit or proceeding effected without their written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the indemnifying parties agree
to indemnify and hold harmless any such Initial Purchaser Indemnified Person, to
the extent provided in paragraph (a), from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(c) Indemnification of Company, Directors and Officers and Certain Other
Persons. The Initial Purchaser agrees to indemnify and hold harmless the
Company, its directors and officers and any person who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
(each, a "Company Indemnified Person") to the same extent as the indemnity from
the Company to the Initial Purchaser set forth in paragraph (a) hereof, but only
with respect to the information furnished in writing to the Company by or on
behalf of the Initial Purchaser expressly for use in the Preliminary Offering
Memorandum or Offering Memorandum or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against a Company Indemnified Person
based on the Preliminary Offering Memorandum or Offering Memorandum, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against the Initial Purchaser pursuant to this paragraph (c), such Initial
Purchaser shall have the rights and duties given to the Company by paragraph (b)
above (except that if the Company shall have assumed the defense thereof the
Initial Purchaser shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the Initial Purchaser's expense), and each
Company Indemnified Person shall have the rights and duties given to the Initial
Purchaser by paragraph (b) above. The foregoing indemnity agreement shall be in
addition to any liability which the Initial Purchaser may otherwise have.
(d) Contribution. If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchaser on the other hand from the
offering of the Original Securities, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Initial
Purchaser on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Initial Purchaser on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Original Securities (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the Initial
Purchaser, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Company on the one hand and the
Initial Purchaser on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Initial Purchaser
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) Contribution of Expenses. The Company and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by a pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such in-
demnified party in connection with investigating any claim or defending any such
action, suit or proceeding. Notwithstanding the provisions of this Section 7,
the Initial Purchaser shall not be required to contribute any amount in excess
of the amount by which the total price of the Original Securities purchased by
it exceeds the amount of any damages which the Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) Payment; Survival. Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 7 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of an Initial Purchaser Indemnified Person or
a Company Indemnified Person, (ii) acceptance of any Original Securities and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to an Initial Purchaser Indemnified Person or to a Company Indemnified
Person shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
(g) Settlement Without Consent. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
SECTION 8. TERMINATION OF AGREEMENT.
(a) Termination; General. The Initial Purchaser may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Offering
Memorandum, any material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations or, in the reasonable
judgement of the Initial Purchaser, prospects, of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Initial Purchaser, impracticable to
market the Original Securities or to enforce contracts for the sale of the
Original Securities, (iii) if trading in any securities of the Company has been
suspended or limited by the Commission or by the New York Stock Exchange, or if
trading generally on the New York Stock Exchange or the NASDAQ National Market
has been suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by such exchange or
by such system or by order of the Commission, the NASD or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York or Delaware authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Section 7
shall survive such termination and remain in full force and effect.
SECTION 9. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the execution and delivery hereof by all the parties hereto.
SECTION 10. INFORMATION FURNISHED BY THE INITIAL PURCHASER. The statements
set forth in the last paragraph on the cover page, in the stabilization legend
on page three and in the second, fifth, sixth and eleventh paragraphs under the
caption "Plan of Distribution" in the Preliminary Offering Memorandum and
Offering Memorandum, constitute the only information furnished by the Initial
Purchaser as such information is referred to in Section 1(b) and Section 7
hereof.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchaser shall be directed to Smith Barney, Inc., 1345 Avenue of the Americas,
New York, New York 10105, Attention: Manager, Investment Banking Division, with
a copy to Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York,
New York 10022, attention of Mark C. Smith, Esq.; notices to the Company shall
be directed to Interpool, Inc., 211 College Road East, Princeton, New Jersey
08540, attention of Chief Executive Officer, with a copy to the Company's
General Counsel at the same address and to Stroock & Stroock & Lavan LLP, 180
Maiden Lane, New York, New York 10038, attention of Jeffrey S. Lowenthal, Esq.
SECTION 12. PARTIES. This Agreement shall each inure to the benefit of and
be binding upon the Initial Purchaser and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchaser and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Initial Purchaser and the Company and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from the Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. EFFECT OF HEADINGS. The Section and Paragraph headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 15. COUNTERPARTS. This Agreement may be signed in various
counterparts which together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least one
counterpart hereof shall have been executed and delivered on behalf of each
party hereto.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Initial Purchaser.
Very truly yours,
Interpool, Inc.
By: /s/ Martin Tuchman
Name: Martin Tuchman
Title: Chairman and Chief Executive
Officer
Confirmed as of the date first
above mentioned.
SMITH BARNEY INC.
By: /s/ Mitchell I. Gordon
Name: Mitchell I. Gordon
Title: Managing Director
<PAGE>
SCHEDULE A
SIGNIFICANT SUBSIDIARIES
Interpool Limited
Trac Lease, Inc.
<PAGE>
Exhibit A
[Form of Opinion of Stroock & Stroock & Lavan LLP
covering federal, New York and Delaware
corporation law]
1. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
2. The Original Securities and the Exchange Securities have been duly
authorized for issuance by the Company, and the Original Securities, when
executed, authenticated and delivered in the manner provided for in the
Indenture and paid for in accordance with this Agreement, and the Exchange
Securities, when executed, authenticated and delivered in the manner provided
for in the Indenture and issued in the Exchange Offer as contemplated by the
Registration Rights Agreement, will represent valid and binding obligations of
the Company and will entitle the holders thereof to the benefits of the
Indenture, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles (regardless of whether considered in a proceeding in equity or at
law).
3. The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles (regardless of
whether considered in a proceeding in equity or at law).
4. The Registration Rights Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles (regardless of
whether considered in a proceeding in equity or at law), and except to the
extent that rights to indemnity and contribution contained therein may be
limited by state and federal securities laws or the public policy underlying
such laws.
5. The Operative Documents and the Securities conform in all material
respects to the descriptions thereof contained in the Offering Memorandum;
6. The statements in the Offering Memorandum under the captions
"Description of Notes" and "Exchange Offer; Registration Rights," to the extent
that such statements constitute matters of law or legal conclusions, have been
reviewed by us and are accurate in all material respects and fairly present the
information disclosed therein;
7. Except as previously made or obtained, as the case may be, no
Governmental Approval is necessary or required in connection with the execution
or delivery by the Company of the Operative Documents or the Original
Securities, as applicable, or the performance by the Company of the transactions
contemplated thereby. The term "Governmental Approval" means any consent,
approval, license, authorization or validation of, or filing, qualification or
registration with any Governmental Authority pursuant to Applicable Laws (as
defined below). The term "Governmental Authority" means any New York, Delaware
or federal legislative, judicial, administrative or regulatory body under
Applicable Laws.
8. The execution and delivery of each of the Operative Documents by the
Company, the issuance and delivery of the Original Securities, and the
consummation by the Company of the transactions contemplated by the Operative
Documents and the Securities and compliance by the Company with the terms of
each of the Operative Documents and the Securities, as applicable, and the
application of the net proceeds of the purchase by the Initial Purchaser of the
Original Securities in the manner set forth under the caption "Use of Proceeds"
in the Offering Memorandum, do not, and will not, whether with or without the
giving of notice or lapse of time, (i) result in any violation of the
Certificate of Incorporation or By-laws of the Company (ii) conflict with or
constitute a breach of, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company (a) under any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument which has been identified to us in an officer's
certificate of the Company as containing provisions which, in the event of any
such conflict, breach, default or imposition of lien, charge or encumbrance,
could result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (the "Applicable Contracts") or (b)
any Applicable Law. The term "Applicable Laws" means only those laws, rules and
regulations of the State of New York and of the United States of America and the
Delaware General Corporation Law which, in our experience, are ordinarily
applicable to transactions of the type contemplated by the Purchase Agreement.
9. Except as described in the Offering Memorandum, such counsel does not
know of any person who has the right, contractual or otherwise, to cause the
Company to sell or otherwise issue to them, or to permit them to underwrite the
sale of, any of the Securities or the right, as a result of the consummation of
the transactions contemplated by this Agreement, to require registration under
the 1933 Act of any shares of Common Stock or other securities of the Company;
10. Assuming (A) the accuracy of the representations and warranties of the
Company set forth in Section 1(a), 1(z), 1(aa), and 1(ab) of this Agreement, (B)
the due performance by the Company of the covenants and agreements set forth in
Section 6(b) of this Agreement and the due performance by the Company and you of
the covenants and agreements set forth in Section 6(a) of this Agreement, (C)
compliance by you with the offering and transfer procedures and restrictions
described in the Offering Memorandum, (D) the accuracy of the representations
and warranties made by purchasers to whom you initially resell the Original
Securities pursuant to Rule 144A, and (E) that purchasers to whom you initially
resell Original Securities receive a copy of the Offering Memorandum or other
notice that such resales are made pursuant to Rule 144A under the Securities Act
of 1933, as amended (the "Securities Act") prior to such sale, it is not
necessary in connection with the offer, sale and delivery of the Original
Securities by the Company and you to register the Original Securities under the
Securities Act, or to qualify the Indenture under the Trust Indenture Act of
1939, as amended;
11. The Company is not required to deliver the information specified in
Rule 144A(d)(4) in connection with the offering and resale of the Original
Securities by the Initial Purchaser;
12. The Company is not required to obtain shareholder consent for the
issuance or offering of the Securities;
13. The Company is not, and following consummation of the transactions
contemplated by the Operative Documents will not be, required to be registered
under the Investment Company Act of 1940, as amended.
In the course of our representation of the Company, we have generally
reviewed and discussed the contents of the Offering Memorandum with certain
officers and employees of the Company and with the Company's internal counsel
and accountants, and, while we have not independently verified, and are not
passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of any of the statements contained in the Offering
Memorandum (including any Incorporated Documents), other than those legal
matters referred to in clauses (5) and (6) above, nothing has come to our
attention that would lead us to believe that the Offering Memorandum (including
any Incorporated Documents and other than the financial statements and other
financial data included, or incorporated by reference, therein or omitted
therefrom, as to which we have not been requested to comment), as of its date or
the date hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
<PAGE>
Exhibit B
[Form of Opinion of Arthur Burns]
1. Each of the Company and Trac Lease has been duly incorporated and is
validly existing and in good standing under the laws of the State of Delaware.
2. Each of the Company and Trac Lease has full corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum and, in the case of the Company, to
enter into and perform its obligations under the Operative Documents, including
without limitation, the issuance of the Securities.
3. Each of the Company, Trac Lease and Interpool Limited (together with
Trac Lease, the "Significant Subsidiaries") is duly qualified and in good
standing, or the local equivalent thereof, as a foreign corporation in every
jurisdiction in which the conduct of its business and its ownership or leasing
of real property makes such qualification necessary, except for those failures
to be so qualified or in good standing that will not in the aggregate have a
material adverse effect upon the Company and its subsidiaries, taken as a whole.
4. At the date indicated (i) the Company had a duly authorized
capitalization as set forth in the Offering Memorandum, (ii) all of the
outstanding shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable, (iii) the stockholders of
the Company have no preemptive rights and (iv) the Company owns all of the
outstanding shares of capital stock of each of the Significant Subsidiaries free
and clear of any perfected security interest or, to my knowledge, any other
liens, security interests, pledges, claims or encumbrances.
5. I do not know of any litigation, arbitration or governmental or other
proceeding pending or threatened against the Company or the Significant
Subsidiaries which is of a character that would be required to be described in
the Offering Memorandum (or a document incorporated by reference therein) if the
Offering Memorandum were a registration statement on Form S-3 under the 1933 Act
which has not been described therein.
6. Each authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than under the
1933 Act, the 1939 Act, the Investment Company Act of 1940 and the securities or
blue sky laws of the various states), which is required for (A) the valid
authorization, issuance, sale and delivery of the Original Securities, or the
Exchange Securities or (B) the execution, delivery or performance of each of the
Operative Documents by the Company, has been received and remains in full force
and effect.
7. I do not know of (i) any statutes or regulations, or any pending or
threatened legal or governmental proceedings of a character required to be
described in the Company's Annual Report on Form 10-K or Quarterly Reports on
Form 10-Q under the 1933 Act and the 1934 Act, or (ii) of any contracts or
documents of a character required to be filed as exhibits to the Company's
Annual Report on Form 10-K or Quarterly Reports on Form 10-Q under Item 601 of
Regulation SK of the 1933 Act that are not described or referred to in the
Offering Memorandum (by reference or otherwise).
8. The descriptions in the Offering Memorandum (by reference or otherwise)
of the statutes, regulations, legal or governmental proceedings and contracts
therein described are accurate in all material respects and fairly discuss the
information required to be shown.
9. To my knowledge, no default exists in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, loan agreement, note, lease or other agreement or instrument that is
described or referred to in the Offering Memorandum (by reference or otherwise)
which could have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
10. The execution and delivery of each of the Operative Documents by the
Company, the issuance and delivery of the Original Securities, and the
consummation by the Company of the transactions contemplated in the Purchase
Agreement and in the Offering Memorandum and compliance by the Company with the
terms of each of the Operative Documents and the Original Securities, as
applicable, and the application of the net proceeds of the purchase by the
Initial Purchaser of the Original Securities in the manner set forth under the
caption "Use of Proceeds" in the Offering Memorandum, do not and will not,
whether with or without the giving of notice or lapse of time, conflict with or
constitute a breach of, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company (a) under any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, in each case known to me, which, in the event of
any such conflict, breach, default or imposition of lien, charge or encumbrance,
could result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (the "Applicable Contracts") or (b)
any Applicable Law. The term "Applicable Laws" means only those laws, rules and
regulations of the State of New York and of the United States of America and the
Delaware General Corporation Law which, in my experience, are ordinarily
applicable to transactions of the type contemplated by the Purchase Agreement.
11. Neither the Company nor any of the Significant Subsidiaries is in
violation in any material respect of its respective certificate or articles of
incorporation or bylaws, or other organizational documents.
12. I, or attorneys in my office working under my direction, have
participated in the preparation of the Offering Memorandum and am familiar with
or have participated in the preparation of the documents incorporated by
reference therein, and other than those legal matters referred to in clause (8)
above, nothing has come to my attention that would lead me to believe that the
Offering Memorandum (other than the financial statements and other financial
data included, or incorporated by reference, therein or omitted therefrom, as to
which we have not been requested to comment), as of its date or the date hereof,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
<PAGE>
Exhibit C
[Form of Opinion of David King & Co.]
1. Interpool Limited is a corporation duly incorporated, validly existing
and in good standing under the laws of Barbados;
2. Interpool Limited has full corporate power and authority under the laws
of Barbados to own, lease and operate its properties and to conduct its
business, and all of the outstanding shares of capital stock of Interpool
Limited have been duly authorized and validly issued and are fully paid and
nonassessable and, to the best knowledge of such counsel, all of the outstanding
shares of capital stock of Interpool Limited are owned by the Company directly
free and clear of any perfected security interests, or to the best knowledge of
such counsel, any other liens, security interests, pledges, claims or other
encumbrance;
3. Interpool Limited is not in violation of its certificate of continuance
or by-laws or other organizational documents or, to the best knowledge of such
counsel, in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to it or of any decree of any court or
governmental agency or body of Barbados having jurisdiction over it; and
4. Interpool Limited is an "international business company" under the
International Business Company Act, 1991 of Barbados.
- ------------------------------------------------------------------------------
INTERPOOL, INC.
Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
-------------------
INDENTURE
Dated as of July 29, 1997
-------------------
$150,000,000
7.35% Notes due 2007
- ------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE
INTERPOOL, INC.
Trust Indenture
ACT SECTION INDENTURE
ss. 310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 7.8
(b) 7.8; 7.10
(c) Not Applicable
ss. 311(a) 7.11
(b) 7.11
(c) Not Applicable
ss. 312(a) 2.15
(b) 11.3
(c) 11.3
ss. 313(a) 7.6
(b)(1) Not Applicable
(b)(2) 7.6
(c) 7.6; 11.2
(d) 7.6
ss. 314(a) 4.2; 11.2
(b) Not Applicable
(c)(1) 11.4
(c)(2) 11.4
(c)(3) Not Applicable
(d) Not Applicable
(e) 11.5
(f) Not Applicable
ss. 315(a) 7.1(b)
(b) 7.5; 11.2
(c) 7.1(a)
(d) 7.1(c)
(e) 6.10
ss. 316(a)(last sentence) 11.6
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) Not Applicable
(b) 6.6
ss. 317(a)(1) 6.7
(a)(2) 6.8
(b) 2.5
ss. 318(a) 11.1
- ----------
Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be a part of the Inden-
ture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions............................................... 1
SECTION 1.2 Other Definitions......................................... 11
SECTION 1.3 Incorporation by Reference
to Trust
Indenture Act............................................. 11
SECTION 1.4 Rules of Construction..................................... 12
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form Generally............................................ 12
SECTION 2.2 Execution and Authentication.............................. 13
SECTION 2.3 Form and Payment.......................................... 13
SECTION 2.4 Registrar and Agents...................................... 14
SECTION 2.5 Paying Agent to Hold Money in
Trust..................................................... 15
SECTION 2.6 Legends................................................... 15
SECTION 2.7 Global Security........................................... 16
SECTION 2.8 Interest.................................................. 17
SECTION 2.9 Transfer and Exchange..................................... 18
SECTION 2.10 Replacement Securities.................................... 28
SECTION 2.11 Outstanding Securities.................................... 28
SECTION 2.12 Temporary Securities...................................... 29
SECTION 2.13 Cancellation.............................................. 29
SECTION 2.14 Defaulted Interest........................................ 30
SECTION 2.15 Securityholder Lists...................................... 30
SECTION 2.16 Persons Deemed Owners..................................... 30
SECTION 2.17 CUSIP Number.............................................. 31
ARTICLE 3
REDEMPTION
SECTION 3.1 Right of Redemption....................................... 31
SECTION 3.2 Selection of Securities to
be Redeemed............................................... 32
SECTION 3.3 Notice of Redemption by the
Company................................................... 32
SECTION 3.4 Effect of Notice of Redemption............................ 33
SECTION 3.5 Deposit of Redemption Price............................... 33
SECTION 3.6 Securities Redeemed in Part............................... 34
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of the Securities................................. 34
SECTION 4.2 Commission Reports........................................ 34
SECTION 4.3 Waiver of Stay, Extension or
Usury Laws................................................ 35
SECTION 4.4 Notice of Default......................................... 35
SECTION 4.5 Compliance Certificates................................... 35
SECTION 4.6 Limitation on Dividends and Other
Distributions............................................. 36
SECTION 4.7 Maintenance of Office or Agency........................... 36
SECTION 4.8 Existence................................................. 37
SECTION 4.9 Payment of Taxes and Other Claims......................... 38
SECTION 4.10 Maintenance of Properties................................. 38
SECTION 4.11 Insurance................................................. 39
SECTION 4.12 Limitation on Liens....................................... 39
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, etc............................... 42
SECTION 5.2 Successor Corporation or Trust
Substituted............................................... 42
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default......................................... 43
SECTION 6.2 Acceleration.............................................. 45
SECTION 6.3 Other Remedies............................................ 45
SECTION 6.4 Waiver of Defaults and Events of
Default................................................... 46
SECTION 6.5 Control by Majority....................................... 46
SECTION 6.6 Rights of Holders to Receive
Payment................................................... 46
SECTION 6.7 Collection Suit by Trustee................................ 47
SECTION 6.8 Trustee May File Proofs of Claim.......................... 47
SECTION 6.9 Priorities................................................ 48
SECTION 6.10 Undertaking for Costs..................................... 48
SECTION 6.11 Limitations on Suits...................................... 49
SECTION 6.12 Restoration of Rights and
Remedies.................................................. 49
ARTICLE 7
TRUSTEE
SECTION 7.1 Duties of Trustee......................................... 50
SECTION 7.2 Rights of Trustee......................................... 51
SECTION 7.3 Individual Rights of Trustee.............................. 52
SECTION 7.4 Trustee's Disclaimer...................................... 52
SECTION 7.5 Notice of Defaults........................................ 53
SECTION 7.6 Reports by Trustee to Holders............................. 53
SECTION 7.7 Compensation and Indemnity................................ 54
SECTION 7.8 Replacement of Trustee.................................... 55
SECTION 7.9 Successor Trustee by Merger, etc.......................... 56
SECTION 7.10 Eligibility; Disqualification............................. 56
SECTION 7.11 Preferential Collection of Claims
Against Company........................................... 57
ARTICLE 8
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 Option to Effect Defeasance or
Covenant Defeasance....................................... 57
SECTION 8.2 Defeasance and Discharge.................................. 57
SECTION 8.3 Covenant Defeasance....................................... 58
SECTION 8.4 Conditions to Defeasance or
Covenant Defeasance....................................... 59
SECTION 8.5 Deposited Money and U.S.
Government Obligations to Be
Held in Trust; Other Miscellaneous
Provisions................................................ 61
ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.1 Satisfaction and Discharge
of Indenture.............................................. 62
SECTION 9.2 Application of Trust Funds................................ 63
ARTICLE 10
SUPPLEMENTAL INDENTURES
SECTION 10.1 Supplemental Indentures Without
Consent of Holders........................................ 64
SECTION 10.2 Supplemental Indentures with
Consent of Holders........................................ 64
SECTION 10.3 Compliance with Trust Indenture
Act....................................................... 66
SECTION 10.4 Revocation and Effect of Consents......................... 66
SECTION 10.5 Notation on or Exchange of
Securities................................................ 67
SECTION 10.6 Effect of Supplemental Indentures......................... 67
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls.............................. 67
SECTION 11.2 Notices................................................... 68
SECTION 11.3 Communications by Holders with
Other Holders............................................ 69
SECTION 11.4 Certificate and Opinion as
to Conditions Precedent................................... 69
SECTION 11.5 Statements Required in
Certificate and Opinion................................... 70
SECTION 11.6 Rules by Trustee and Agents............................... 70
SECTION 11.7 Record Date............................................... 70
SECTION 11.8 Business Days............................................. 71
SECTION 11.9 Governing Law............................................. 71
SECTION 11.10 No Adverse Interpretation of
Other Agreements.......................................... 71
SECTION 11.11 No Recourse Against Others................................ 71
SECTION 11.12 Successors................................................ 71
SECTION 11.13 Multiple Counterparts..................................... 71
SECTION 11.14 Table of Contents, Headings, etc.......................... 72
SECTION 11.15 Severability.............................................. 72
Signatures............................................................... 73
<PAGE>
INDENTURE dated as of July 29, 1997 between Interpool, Inc., a Delaware
corporation (the "Company"), and United States Trust Company of New York, a New
York banking corporation (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of all Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent or agent for service of notices
and demands.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar Federal or
State law for the relief of debtors.
"Board of Directors of the Company" means the Board of Directors of the
Company or any committee of the Board.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day, other than a Saturday or Sunday, which is
not a day on which banking institutions in the City of New York are authorized
or obligated by law or executive order to close.
"Capitalized Leases" of any Person means, at the time any determination
thereof is to be made, capital leases for property leased by such Person that
would at such time be required to be capitalized on the balance sheet of such
Person in accordance with generally accepted accounting principles.
"Capital Stock" means any and all shares or other equivalents (however
designated) of capital stock, including all common stock and all preferred
stock.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the Indenture and thereafter means the successor.
"Company Order" means a written order of the Company signed by two Officers
of the Company.
"Consolidated Indebtedness-to-Stockholders' Equity Ratio" means at any date
of determination (the "Determination Date"), the ratio of (i) the aggregate Debt
of the Company and its Subsidiaries on a consolidated basis as at the
Determination Date to (ii) the sum of (w) the stockholder's equity of the
Company and its Subsidiaries on a consolidated basis calculated in accordance
with generally accepted accounting principles as at the Determination Date, (x)
the amount set forth on the consolidated balance sheet of the Company and its
Subsidiaries under the caption "Company-obligated mandatorily redeemable
preferred securities in subsidiary grantor trusts" or a similar caption, (y) to
the extent not included in clause (w), the aggregate amount of preferred stock
of the Company (as reflected on the consolidated balance sheet of the Company
calculated in accordance with generally accepted accounting principles) which is
not subject to mandatory redemption prior to the maturity date of the
Securities, and (z) the Subordinated Indebtedness of the Company as to which no
principal payments are due until after the maturity date of the Securities (to
the extent such Subordinated Indebtedness was included in the calculation of
Debt in clause (i) above).
"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 114 West
47th Street, New York, New York 10036, Attn: Corporate Trust.
"Custodian" means any receiver, trustee, liquidator or similar official
under any Bankruptcy Law.
"Debt" means (a) the principal of all indebtedness (i) for borrowed money
or (ii) for the deferred purchase price of property unless the price thereof was
payable in full within 12 months from the date on which the obligation was
created or (iii) evidenced by notes, bonds or other instruments and (b) all
Lease Obligations; provided, however, that, except for purposes of the
definition of Consolidated Indebtedness-to-Stockholders' Equity Ratio, Debt
shall not include Subordinated Indebtedness as to which no scheduled principal
payments are due until after the maturity date of the Securities.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Definitive Securities" means those securities issued in fully registered
certificated form not otherwise in global form.
"Depositary" means, with respect to Securities the Company determines will
be issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 2.7(c).
"Dollar" or "$" means the lawful money of the United States of America.
"Exchange Offer" means the offer that may be made pursuant to the
Registration Rights Agreement by the Company to exchange Exchange Securities for
Original Securities.
"Exchange Securities" means the 7.35% Notes due 2007, as authenticated and
issued under this Indenture in exchange for an Original Security or Original
Securities pursuant to the offer to be made pursuant to the Registration
Rights Agreement to exchange Exchange Securities for Original Securities.
"Global Security" means, with respect to the Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Holder" or "Securityholder" means the Person in whose name a Security is
registered on the Registrar's books.
"Indebtedness," as applied to any Person, means, without duplication (i)
all indebtedness for borrowed money whether or not evidenced by a promissory
note, draft or similar instrument, (ii) that portion of obligations with respect
to leases that is properly classified as a liability on a balance sheet in
accordance with generally accepted accounting principles, (iii) notes payable
and drafts accepted representing extensions of credit, (iv) any balance owed for
all or any part of the deferred purchase price of property or services, which
purchase price is due more than six months from the date of incurrence of the
obligation in respect thereof (except any such balance that constitutes (a) a
trade payable or an accrued liability arising in the ordinary course of business
or (b) a trade draft or note payable issued in the ordinary course of business
in connection with the purchase of goods or services), if and to the extent such
debt would appear as a liability upon a balance sheet of such Person prepared in
accordance with generally accepted accounting principles, and (v) any deferral,
amendment, renewal, extension, supplement or refunding of any of the foregoing
indebtedness; provided, however, that, in computing the "Indebtedness" of any
Person, there shall be excluded any particular indebtedness if, upon or prior to
the maturity thereof and at the time of determination of such indebtedness,
there shall have been deposited with a depository in trust money (or evidences
of indebtedness if permitted by the instrument creating such indebtedness) in
the necessary amount to pay, redeem or satisfy such indebtedness as it becomes
due, and the amount so deposited shall not be included in any computation of the
assets of such Person.
"Indenture" means this Indenture as originally executed or, if amended or
supplemented as provided in Article 10, as amended or supplemented from time to
time.
"Interest Payment Date" shall have the meaning set forth in Section 2.8.
"Investment Grade" means a rating of BBB- or higher by Standard & Poor's.
"Issue Date" means July 29, 1997.
"Lease Obligation" of a Person means all rental obligations under leases of
property (other than electronic data processing and computer equipment and
leases of office space by such Person or its Subsidiaries) either (a) which are
Capitalized Leases, or (b) if not Capitalized Leases, which are leases of
equipment which had an initial term of more than three years (including any
renewal term at the option of the lessor). The amount of Lease Obligations shall
be equal to the aggregate value of rentals payable (other than rentals
consisting of taxes, indemnities, maintenance items, replacements and other
similar charges which are in addition to the basic financial rent for the use of
the property) by the lessee thereof during the remaining term thereof, including
periods of renewal at the option of the lessor, discounted to present value
using the lessee's "incremental borrowing rate at the inception of the lease" in
accordance with Financial Accounting Standards No. 13 of the Financial Standards
Board from time to time in effect.
"Make-Whole Amount" means, in connection with any optional redemption of
any Security, the excess, if any, of (i) the aggregate present value as of the
date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of any interest accrued to the date of redemption)
that would have been payable in respect of such dollar if such redemption has
not been made, determined by discounting, on a semi-annual basis, such principal
and interest at the Reinvestment Rate (which rate shall be determined as of the
third Business Day preceding the date such notice of redemption is given) from
the respective dates on which such principal and interest would have been
payable if such redemption had not been made, over (ii) the aggregate principal
amount of the Securities being redeemed.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or Assistant Treasurer, the Secretary or Assistant
Secretary or the Controller or Assistant Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers of the
Company and otherwise complying with the requirements of Sections 11.4 and 11.5,
and delivered to the Trustee or an Agent, as applicable.
"Opinion of Counsel" means a written opinion from Stroock & Stroock & Lavan
LLP or any other legal counsel who is reasonably acceptable to the Trustee
(which may include an employee of or counsel to the Company or the Trustee),
complying with the requirements of Sections 11.4 and 11.5, and delivered to the
Trustee or an Agent, as applicable.
"Original Securities" means the 7.35% Notes due 2007, as authenticated and
issued under this Indenture on the Issue Date.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.10 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"Purchase Money Indebtedness" of a Person means all Debt (excluding all
Lease Obligations) of such Person which is Secured Indebtedness incurred to
finance the purchase of assets if such Debt (a) shall have been incurred
within 180 days of the acquisition of such assets by the Person whose Purchase
Money Indebtedness is being determined and (b) does not exceed in principal
amount the initial cost of such assets and shall include all extensions,
renewals and refinancings of such Debt not in excess of the principal amount
thereof outstanding immediately prior to such extension, renewal or
refinancing. The initial cost of assets may include, in addition to the purchase
price thereof and the purchase price of all accessories and equipment installed
thereon, all freight, delivery and handling charges, excise, sales and use taxes
and all other amounts which may be capitalized and included in the cost of the
assets under generally accepted accounting principles.
"Ratings Decision" shall mean, with respect to the Securities, the rating
of the Securities by Standard & Poor's as Investment Grade.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as
specified in such Security.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the Issue Date, by and among the Company and the Initial Purchaser
named therein as such agreement may be amended, modified or supplemented from
time to time.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the most
recent Statistical Release under the caption "Treasury Constant Maturities:" for
the maturity (rounded to the nearest month) corresponding to the remaining life
to maturity, as of the payment date of the principal being redeemed or paid. If
no maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate
shall be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"Restricted Security" means any Security that is subject to the transfer
restrictions set forth in Section 2.9(a).
"Sale and Leaseback", with respect to a Person, means any transaction with
a bank, company, lender or investor providing for the leasing by such Person of
any property which has been or is to be sold or transferred by such Person to
such bank, company, lender or investor, or of any Person to whom funds have been
or are to be advanced by such bank, company, lender or investor on the security
of such property.
"Secured Indebtedness" means with respect to a Person all Debt which is
secured by any security interest, mortgage, charge, pledge, deed of trust, or
other similar lien on assets by the owner thereof and includes all Lease
Obligations. Transportation Equipment which is subject to a lease or contract
which is included as a Lease Obligation is deemed to secure the Debt evidenced
thereby.
"Securities" means, collectively, the Original Securities and the Exchange
Securities.
"Security Register" means the list of holders provided to the Trustee
pursuant to Section 2.15 or any security register maintained by the Registrar.
"Significant Subsidiary" means any Subsidiary of the Company that would be
a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X under the
Securities Act, as such Rule is in effect on the date of this Indenture.
"Standard & Poor's" means Standard & Poor's Rating Group (a division of
McGraw Hill, Inc.) or any successor rating agency.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which established yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by the Company.
"Subordinated Indebtedness" means Debt of the Company which is expressly
subordinated and subject in right of payment to the prior payment, in bankruptcy
or in the event of a payment default on the Securities, in full in money or
money's worth in accordance with their terms, of all principal of, premium, if
any, and interest on the Securities.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding voting power of the Voting Stock of which is owned or controlled,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person, or by such Person and one or more other Subsidiaries thereof, or
(ii) any limited partnership of which such Person or any Subsidiary of such
Person is a general partner, or (iii) any other Person (other than a corporation
or limited partnership) in which such Person, or one or more other Subsidiaries
of such Person, or such Person and one or more other Subsidiaries thereof,
directly or indirectly, has more than 60% of the outstanding partnership or
similar interests or has the power, by contract or otherwise, to direct or cause
the direction of the policies, management and affairs thereof.
"Transportation Equipment" means domestic and marine containers, trucks,
tractors, trailers, chassis, cranes, portable ramps, lifting equipment, railroad
locomotives, railroad rolling stock, modular office units, mobile office and
storage trailers and all other transportation equipment, and includes all
accessories and attachments thereto.
"Trust Officer", when used with respect to the Trustee, means the chairman
or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller 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 of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"United States" means the United States of America.
"U.S. Government Obligations" means securities which are (a) direct
obligations of the United States, for the payment of which its full faith and
credit is pledged, or (b) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" of a Person means Capital Stock of such Person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time the stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
SECTION 1.2 OTHER DEFINITIONS.
Term Defined in Section
"Covenant Defeasance" 8.3
"Defeasance" 8.2
"Event of Default" 6.1
"Initial Lien" 4.12
"Lien" 4.12
"Paying Agent" 2.4
"Refinancing" 4.12
"Registrar" 2.4
"Required Filing Dates" 4.2
SECTION 1.3 INCORPORATION BY REFERENCE TO TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act of
1939 (the "TIA"), the provision is incorporated by reference in and made a part
of this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the Securities and Exchange
Commission.
"indenture securities" means the Securities.
"indenture security holder" means a
Securityholder.
"indenture to be qualified" means this Inden-
ture.
"indenture trustee" or "institutional trustee"
means the Trustee.
"obligor" on the indenture securities means
the Company or any other obligor on the indenture
securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rules have the
meanings assigned to them therein.
SECTION 1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with United States generally accepted accounting principles in
effect as of the time as to which such accounting principles are to be applied;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the
singular; and
(5) references to Sections or Articles means reference to such Section or
Article in this Indenture, unless stated otherwise; and
(6) "including" or "included" means included but not limited to.
ARTICLE 2
THE SECURITIES
SECTION 2.1 FORM GENERALLY.
The Original Securities and related Trustee's certificate of authentication
shall be substantially in the form of Exhibit A and the Exchange Securities and
related Trustee's certificate of authentication shall be substantially in the
form of Exhibit B, the terms of each of which are incorporated in and made a
part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Company is subject or usage. Each Security shall be dated the date of its
authentication. The Securities shall be issued in denominations of $1,000 and
integral multiples thereof. Notwithstanding the foregoing, Definitive Securities
issued to any "institutional accredited investor" within the meaning of Rule 502
(A) (1), (2), (3) or (7) under the Securities Act shall be issued only in
minimum denominations of $100,000 and any amount in excess thereof that is an
integral multiple of $1,000.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature in the manner set forth in Exhibits A and B. The Company's
seal shall be impressed, affixed, imprinted or reproduced on the Securities and
may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of an authorized officer of the Trustee. The signature of the Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture. The form of Trustee's certificate of authentication to be borne by
the Securities shall be substantially as set forth in Exhibits A and B hereto.
The Trustee shall, upon a Company Order, authenticate for original issue up
to, and the aggregate principal amount of Securities outstanding at any time may
not exceed the sum of, $150,000,000 principal amount of the Securities, except
as provided in Sections 2.9, 2.10 and 2.12. The series of Securities to be
initially issued hereunder shall be the Original Securities.
The Trustee may appoint an authenticating agent to authenticate Securities.
An authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or an Affiliate.
SECTION 2.3 FORM AND PAYMENT.
Except as provided in Section 2.7, the Securities shall be issued in fully
registered certificated form without interest coupons. Principal of and interest
on the Securities issued in certificated form will be payable, the transfer of
such Securities will be registrable and such Securities will be exchangeable
for Securities bearing identical terms and provisions at the office or agency of
the Company maintained for such purpose under Section 2.4; provided, however,
that payment of interest with respect to the Securities may be made at the
option of the Company (i) by check mailed to the holder at such address as shall
appear in the Security Register or (ii) by transfer to an account maintained by
the Person entitled thereto, provided that proper transfer instructions have
been received in writing by the relevant record date.
SECTION 2.4 REGISTRAR AND AGENTS.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities 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 Securities and this Indenture may be served. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional Paying Agents. The
Company or any Subsidiary thereof may act as Paying Agent. The term "Registrar"
includes any co-Registrar and the term "Paying Agent" includes any additional
paying agent.
Any Paying Agent or Registrar may resign as Paying Agent or Registrar upon
thirty (30) days' prior written notice to the Company and the Trustee. The
Company may change any Paying Agent or Registrar on sixty (60) days' prior
written notice to the Trustee. The Company shall notify the Trustee in writing
of the name and address of any such Agent. If the Company fails to maintain a
Registrar, 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.
SECTION 2.5 PAYING AGENT TO HOLD MONEY IN TRUST.
Prior to each due date of the principal of, premium if any, and interest on
the Securities, the Company shall deposit with each Paying Agent a sum
sufficient to pay such principal, premium, if any, and interest so becoming due.
The Company shall require each Paying Agent other than the Trustee to agree in
writing that it will hold in trust for the benefit of Holder of Securities or
the Trustee all money held by the Paying Agent for the payment of principal of,
premium if any, or interest on the Securities and to notify the Trustee
immediately in writing of any default by the Company (or any other obligor on
the Securities) in making any such payment. If the Company or a Subsidiary
thereof acts as Paying Agent, it shall on or before each due date of the
principal of, premium, if any, or interest on any Securities segregate the money
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and 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 forthwith pay to the Trustee all
sums so held in trust by such Paying Agent and account for any funds disbursed.
Upon doing so, the Paying Agent (other than the Company or a Subsidiary thereof)
shall have no further liability for the money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall,
subject to the requirements of applicable law, be paid to the Company upon its
request; and the Holder of such Security shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease.
SECTION 2.6 LEGENDS.
(a) Except as permitted by subsection (b) of this Section 2.6 or as
otherwise determined by the Company in accordance with applicable law, each
Security shall bear the applicable legends relating to restrictions on transfer
pursuant to the securities laws in substantially the form set forth in Section
2.9(g)(1).
(b) The Company shall issue and the Trustee shall authenticate Exchange
Securities in exchange for Original Securities accepted for exchange in the
Exchange Offer, which Exchange Securities shall not bear the legends required by
subsection (a) above. Pursuant to the terms of the Exchange Offer as set forth
in the Registration Rights Agreement, certain Persons are not eligible to tender
their Original Securities in the Exchange Offer. Accordingly, a holder of
Original Securities who is either (A) a broker-dealer who purchased such
Original Securities directly from the Company for resale pursuant to Rule 144A
or any other available exemption under the Securities Act, (B) a Person
participating in the distribution of the Original Securities or (C) a Person who
is an affiliate (as defined in Rule 144 under the Securities Act) of the Company
shall, pursuant to the terms of the Registration Rights Agreement, only receive
Exchange Securities other than in connection with the Exchange Offer, which
Exchange Securities, notwithstanding anything else herein to the contrary, shall
bear the legends required by subsection (a) above and shall not be represented
by a Global Security.
SECTION 2.7 GLOBAL SECURITY.
(a) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, redeemed, repurchased or
cancelled, such Global Security shall be returned to or retained and cancelled
by the Trustee. Any endorsement of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented
thereby shall be made by the Trustee, in accordance with instructions given by
the Company as required by this Section 2.7.
(b) The Global Securities may be transferred, in whole but not in part,
only to the Depositary, another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary or the Depositary has ceased to be a
clearing agency registered under the Exchange Act, and a successor Depositary is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon receipt of a Company Order, will authenticate and
make available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. If there is
an Event of Default, the Depositary shall have the right to exchange the Global
Securities for Definitive Securities. In addition, the Company may at any time
determine that the Securities shall no longer be represented by a Global
Security. In the event of such an Event of Default or such a determination, the
Company shall execute, and subject to Section 2.9, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and make available for delivery the Definitive Securities, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security, in exchange for such Global Security.
Upon the exchange of the Global Security for such Definitive Securities, in
authorized denominations, the Global Security shall be cancelled by the Trustee.
Such Definitive Securities issued in exchange for the Global Security shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Definitive Securities
to the Depositary for delivery to the Persons in whose names such Definitive
Securities are so registered.
SECTION 2.8 INTEREST.
(a) Each Security will bear interest at the rate of 7.35% per annum
provided, however, that if a Ratings Decision (of which the Trustee has been
given notice by the Company) shall not have occurred by the 90th day after the
Issue Date, the rate per annum for regular interest payments on the Securities
and on overdue principal and overdue installments of interest, each as set forth
above, shall automatically and irrevocably increase to 7.6% per annum effective
retroactively from the Issue Date. Each Security will bear interest from the
most recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Issue Date, until the
principal thereof becomes due and payable, and at the rate provided in the first
sentence of this Section 2.8 on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest, compounded semi-annually, payable semi-annually in
arrears on February 1 and August 1 of each year (each, an "Interest Payment
Date") commencing on February 1, 1998 to the Person in whose name such Security
or any Predecessor Security is registered, at the close of business on the
preceding January 15 or July 15, respectively, regardless of whether such day is
a Business Day.
(b) Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months and, for any period of less than a full calendar month, the
number of days lapsed in such month. In the event that any Interest Payment Date
falls on a day that is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), with the
same force and effect as if made on such date.
(c) The Company will not be responsible for, and will not be required to
compensate holders of or investors in the Securities for, any withholding taxes
that are imposed on interest payments on the Securities.
SECTION 2.9 TRANSFER AND EXCHANGE.
(a) TRANSFER RESTRICTIONS. The Original Securities, and those Exchange
Securities with respect to which any Person described in Section 2.6(b)(A), (B)
or (C) is the beneficial owner, may not be transferred except in compliance with
the legend contained in Exhibit A unless otherwise determined by the Company in
accordance with applicable law.
(b) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES. When a Security
is presented to the Registrar with a request to register the transfer, the
Registrar shall register the transfer as requested and when Securities are
presented to the Registrar with a request to exchange them for a like aggregate
principal amount of Securities in other authorized denominations, the Registrar
shall make the exchange as requested, provided that every Security presented or
surrendered for registration or transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer into a form satisfactory to
the Company and the Registrar duly executed by the Holder thereof or his
attorney-in-fact duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee or any
authenticating agent shall authenticate Securities at the Registrar's written
request. No service charge shall be made for any registration of transfer or
exchange of Securities but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto, but this provision shall not apply to any exchange pursuant to Section
2.12, 3.6 or 10.5 not involving any transfer.
All Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or Global
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Securities or Global Securities surrendered upon such registration of transfer
or exchange.
Prior to due presentment for registration or transfer of any Security, the
Trustee and the Company may deem and treat the Person in whose name the Security
is registered as the absolute owner of such Security, and neither the Trustee
nor the Company shall be affected by notice to the contrary.
The Registrar shall not be required (i) to issue, register the transfer of,
or exchange Securities during a period beginning at the opening of business 15
days before the day of any selection of Securities for redemption under Section
3.2 and ending at the close of business on the day of selection, (ii) to
register the transfer or exchange of any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part, or (iii) to issue, register the transfer of, or exchange Securities
during the period between a record date and the next succeeding Interest Payment
Date.
(c) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When Definitive
Securities are presented to the Registrar with a request:
(y) to register the transfer of such Definitive Securities; or
(z) to exchange such Definitive Securities for an equal principal amount
of Definitive Securities of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the
Definitive Securities surrendered for registration of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar duly
executed by the Securityholder or such Holder's attorney duly authorized in
writing; and
(2) in the case of Definitive Securities that are Restricted Securities,
such request shall be accompanied by the following additional information and
documents, as applicable:
(A) if such Restricted Securities are being delivered to the
Registrar by a Securityholder for registration in the name of such
Securityholder, without transfer, a certification from such
Securityholder to that effect (in substantially the form set forth on
the reverse of the Security); or
(B) if such Restricted Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A) in
accordance with Rule 144A a certification to that effect (in
substantially the form set forth on the reverse of the Security); or
(C) if such Restricted Security is being transferred (i) pursuant
to an exemption from registration in accordance with Rule 144 or
Regulation S under the Securities Act or (ii) pursuant to an effective
registration statement under the Securities Act, or (iii) in a minimum
principal amount of $100,000 to an "institutional accredited investor"
within the meaning of Rule 501(A)(1), (2), (3) or (7) under the
Securities Act that is acquiring the security for its own account, or
for the account of such an institutional accredited investor, not with
a view to or for offer or sale in connection with any distribution in
violation of the Securities Act, or (iv) in reliance on another
exemption from the registration requirements of the Securities Act, a
certification to that effect (in substantially the form set forth on
the reverse of the Security) and in the case of (i), (iii) and (iv)
above, if the Company or the Registrar so request, a customary opinion
of counsel reasonably acceptable to the Company and to the Registrar
to the effect that such transfer is in compliance with the Securities
Act.
(d) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY.
A Definitive Security may not be exchanged for a beneficial interest in a
Global Security except upon satisfaction of the requirements set forth below.
Upon receipt by the Registrar of a Definitive Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Registrar, together with:
(1) if such Definitive Security is a Restricted Security, certification,
substantially in the form set forth on the reverse of the Security, that such
Definitive Security is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A) in accordance with Rule 144A; and
(2) whether or not such Definitive Security is a Restricted Security,
written instructions of the Securityholder directing the Registrar to make, or
to direct the Trustee to make, an endorsement on the Global Security to reflect
an increase in the aggregate principal amount of the Securities represented by
the Global Security, then the Registrar shall cancel such Definitive Security
and cause, or direct the Trustee to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Trustee, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate a new Global Security in
the appropriate principal amount.
(e) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
The transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Depositary therefor which shall include
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act.
(f) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A DEFINITIVE
SECURITY.
(1) Any Person having a beneficial interest in a Global Security may upon
request exchange such beneficial interest for a Definitive Security. Upon
receipt by the Registrar of written instructions or such other form of
instructions as is customary for the Depositary from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global
Security and upon receipt by the Registrar of a written order or such other form
of instructions as is customary for the Depositary or the Person designated by
the Depositary as having such a beneficial interest in a Restricted Security
only, the following additional information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification from such person to that effect (in substantially the
form set forth on the reverse of the Security); or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A) in
accordance with Rule 144A a certification to that effect from the
transferor (in substantially the form set forth on the reverse of the
Security); or
(C) if such beneficial interest is being transferred (i) pursuant
to an exemption from registration in accordance with Rule 144 or
Regulation S under the Securities Act or (ii) pursuant to an effective
registration statement under the Securities Act, or (iii) in a minimum
principal amount of $100,000 to an "institutional accredited investor"
within the meaning of Rule 501(A)(1), (2), (3) or (7) under the
Securities Act that is acquiring the security for its own account, or
for the account of such an institutional accredited investor, not with
any distribution in violation of the Securities Act, or (iv) in
reliance on another exemption from the registration requirements of
the Securities Act, a certification to that effect from the transferee
or transferor (in substantially the form set forth on the reverse of
the Security) and in the case of (i), (iii) and (iv) above, if the
Company or the Registrar so requests, a customary opinion of counsel
from the transferee or transferor reasonably acceptable to the Company
and to the Registrar to the effect that such transfer is in compliance
with the Securities Act;
then the Registrar, or the Trustee, will cause, in accordance with the
standing instructions and procedures existing between the Depositary and the
Trustee, the aggregate principal amount of the Global Security to be reduced
and, following such reduction, the Company will execute and, upon receipt of an
authentication order in the form of an Officers' Certificate, the Trustee or the
Trustee's authenticating agent will authenticate and deliver to the transferee a
Definitive Security.
(2) Definitive Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 2.9(f) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Registrar. The Registrar shall deliver such Definitive Securities
to the persons in whose names such Securities are so registered.
(g) LEGENDS.
(1) Except as permitted by the following paragraph (2), each Security
certificate evidencing the Global Securities and the Definitive Securities (and
all securities issued in exchange therefor or substitution thereof, but not
including Exchange Securities as defined herein) shall bear legends in
substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) IN A MINIMUM PRINCIPAL AMOUNT OF $100,000
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY, AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE
TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM THE TRANSFEREE
SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED
JULY 24, 1997. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
(2) Upon any sale or transfer of a Restricted Security (including any
Restricted Security represented by a Global Security) pursuant to Rule 144 under
the Securities Act or an effective registration statement under the Securities
Act:
(A) in the case of any Restricted Security that is a Definitive
Security, the Registrar shall permit the Securityholder to exchange
such Restricted Security for a Definitive Security that does not bear
the legend set forth above and rescind any restriction on the transfer
of such Restricted Security in the case of a sale or transfer pursuant
to Rule 144 under the Securities Act, after the Resale Restriction
Termination Date (as defined in clause (g)(1) above) or delivery of a
customary opinion of counsel reasonably satisfactory to the Registrar;
and
(B) any such Restricted Security represented by a Global Security
shall not be subject to the provisions set forth in (1) above (such
sales or transfers being subject only to the provisions of Section
2.9(e) hereof); provided, however, that with respect to any request
for an exchange of a Restricted Security that is represented by a
Global Security for a Definitive Security that does not bear a legend,
which request is made in reliance upon Rule 144 under the Securities
Act, the Securityholder shall certify in writing to the Registrar (to
be accompanied by a customary opinion of counsel reasonably
satisfactory to the Registrar) that such request is being made
pursuant to Rule 144 under the Securities Act (such certification to
be substantially in the form set forth on the reverse of the
Security).
(h) EXCHANGE OF ORIGINAL SECURITIES FOR EXCHANGE SECURITIES.
The Original Securities may be exchanged for Exchange Securities pursuant
to the terms of the Exchange Offer and in accordance with the provisions set
forth in this Section 2.9, as may be applicable. The Trustee shall make the
exchange as follows:
The Company shall present the Trustee with an Officers' Certificate
certifying the following:
(A) upon issuance of the Exchange Securities, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Original Securities properly tendered in the
Exchange Offer that are represented by a Global Security and the principal
amount of Original Securities properly tendered in the Exchange Offer that are
represented by Definitive Securities, the name of each holder of such Definitive
Securities, the principal amount properly tendered in the Exchange Offer by each
such holder and the name and address to which Definitive Securities representing
Exchange Securities shall be registered and sent for each such holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii) an
Opinion of Counsel (x) to the effect that the Exchange Securities have been
registered under Section 5 of the Securities Act and the Indenture has been
qualified under the Trust Indenture Act and (y) with respect to the matters set
forth in Section 3(p) of the Registration Rights Agreement and (iii) a Company
Order, shall authenticate (A) a Global Security representing Exchange Securities
in an aggregate principal amount equal to the aggregate principal amount of
Original Securities represented by a Global Security indicated in such Officers'
Certificate as having been properly tendered and (B) Definitive Securities
representing Exchange Securities registered in the names of, and in the princi-
pal amounts indicated in, such Officers' Certificate.
If the principal amount of the Global Security representing Exchange
Securities is less than the principal amount of the Global Security representing
Original Securities, the Trustee shall make an endorsement on such Global
Security representing Original Securities indicating a reduction in the
principal amount represented thereby.
The Trustee shall deliver such Definitive Securities representing Exchange
Securities to the holders thereof as indicated in such Officers' Certificate.
SECTION 2.10 REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security presents evidence to the satisfaction of the Company and the Trustee
that the Security has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Security if the
requirements of the Trustee and the Company are met. An indemnity bond may be
required by the Company or the Trustee that is sufficient in the judgment of the
Company to protect the Company and is sufficient in the judgment of the Trustee
to protect the Trustee or any Agent from any loss which it may suffer if a
Security is replaced. The Company and the Trustee may each charge for its
expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Securities duly issued hereunder.
SECTION 2.11 OUTSTANDING SECURITIES.
Securities outstanding at any time are all Securities authenticated by the
Trustee except for those cancelled by it, those delivered to it for cancellation
and those described in this Section 2.11 as not outstanding.
If a Security is replaced pursuant to Section 2.10, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company or any of its Subsidiaries)
holds on a Redemption Date or maturity date money deposited with it by or on
behalf of the Company sufficient to pay the principal of and accrued interest on
the Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security; provided, however, in determining whether the
holders of the requisite aggregate principal amount of Securities have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Company or any other obligor on the Securities or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided, that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities which the Trustee actually knows are so owned shall be so
disregarded.
SECTION 2.12 TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of Definitive Securities but may have
non-material variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Securities in exchange for temporary
Securities upon written order of the Company signed by two Officers. Until so
exchanged, temporary Securities represent the same rights as Definitive
Securities. Upon request of the Trustee, the Company shall provide a certificate
to the effect that the temporary Securities meet the requirement of the second
sentence of this Section 2.12.
SECTION 2.13 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee shall cancel all Securities surrendered for transfer, exchange or
payment and destroy cancelled Securities in accordance with its customary
destruction procedures and deliver a certificate of such destruction to the
Company unless the company directs the Trustee in writing prior to such
destruction to deliver cancelled Securities to the Company. Subject to Sections
2.10 and 3.6, the company may not issue Securities to replace Securities that it
has previously paid or delivered to the Trustee for cancellation.
SECTION 2.14 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on Securities, it shall
pay the defaulted interest to the Persons who are Holders of the Securities on a
subsequent special record date. After the deposit by the Company with the
Trustee of money sufficient to pay such defaulted interest, the Trustee shall
fix the record date and payment date. Each such special record date shall be not
less than 10 days prior to such payment date. Each such payment date shall be
not more than 60 days after the deposit by the Company of money to pay the
defaulted interest. At least 15 days before the special record date, the Company
shall mail to each Holder of a Security a notice that states the special record
date, the payment date, and the amount of defaulted interest to be paid. The
Company may pay defaulted interest in any other lawful manner if, after prior
notice to the Trustee, such payment shall be deemed operationally practicable by
the Trustee.
SECTION 2.15 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Securities. If the Trustee is not the Registrar, the Company or other
obligor, if any, shall furnish to the Trustee at least seven Business Days prior
to each semi-annual 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 Holders of Securities upon
which the Trustee may conclusively rely. The Trustee may destroy any such list
upon receipt of a replacement list. The Paying Agent will solicit from each
Securityholder a certification of social security number or taxpayer
identification number in accordance with its customary practice and as required
by law, unless the Paying Agent is in possession of such certification. Each
Paying Agent is authorized to impose back-up withholding with respect to
payments to be made to Securityholders to the extent required by law.
SECTION 2.16 PERSONS DEEMED OWNERS.
Prior to presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 2.17 CUSIP NUMBER.
The Company may use a "CUSIP" number when issuing Securities, and if so,
the Trustee may use the CUSIP number in notices of redemption or exchange as a
convenience to Holders of Securities; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Securities, and that reliance may be
placed only on the other identification numbers printed on the Securities.
ARTICLE 3
REDEMPTION
SECTION 3.1 RIGHT OF REDEMPTION.
The Company may redeem the Securities, at any time, in whole or from time
to time in part, at the election of the Company, at a Redemption Price equal to
the sum of (i) the principal amount of the Securities being redeemed plus
accrued interest thereon to the Redemption Date and (ii) the Make-Whole Amount,
if any, with respect to such Securities. The election of the Company to redeem
any Securities pursuant to this Section shall be evidenced by a Board
Resolution. The Company shall, at least 45 but not more than 90 days prior to
the Redemption Date fixed by the Company (or such other period as the Company
and the Trustee may agree), notify the Trustee of such Redemption Date (such
notification to include the Company's calculation of the Make-Whole Amount,
which calculation the Trustee is authorized to rely on for purposes of the
Indenture) and, in the case of any redemption at the election of the Company of
less than all the Securities, of the principal amount of Securities to be
redeemed. The notice shall be in writing and accompanied by an Officers'
Certificate stating that the redemption complies with the provisions of this
Indenture and the provisions of the applicable Board Resolution, if any.
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed pro rata or by lot or by any other method
that the Trustee considers fair and appropriate under the circumstances or
otherwise required by any exchange upon which the Securities are listed. The
Trustee shall promptly notify the Company of the Securities to be so called for
redemption. The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have denominations larger than
$1,000 principal amount. Securities and portions of Securities selected by the
Trustee shall be in principal amounts of $1,000 or multiples thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee's selection of
Securities for redemption by any method authorized by this Section 3.2 shall be
conclusively deemed reasonable.
SECTION 3.3 NOTICE OF REDEMPTION BY THE COMPANY.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption
must be surrendered to the Paying Agent to
collect the Redemption Price;
(5) that interest on Securities called for
redemption ceases to accrue on and after
the Redemption Date;
(6) if any Security is being redeemed in
part, the portion of the principal amount of
such Security to be redeemed and that,
after the Redemption Date, upon surrender
of such Security, a new Security or Secu-
rities in principal amount equal to the
unredeemed portion thereof will be issued;
(7) the CUSIP number, if any.
Upon its receipt of a Company Order, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. If a CUSIP number
is listed in such notice or printed on the Security, the notice shall state that
no representation is made as to the correctness or accuracy of such CUSIP
number.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the applicable Redemption Date and at the applicable
Redemption Price and shall cease to bear interest from and after the Redemption
Date (unless the Company shall default in payment of the Redemption Price or
accrued interest). Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.
On or before 10 a.m. on the Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary thereof is the Paying Agent,
shall segregate and hold in trust or cause such Subsidiary to segregate and hold
in trust) in immediately available funds money sufficient to pay the Redemption
Price of and accrued interest on all Securities to be redeemed on that date.
SECTION 3.6 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder, at the expense of the Company, a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF THE SECURITIES.
The Company shall duly and punctually pay the principal of, premium if any,
and interest on the Securities on the dates and in the manner provided in the
Securities and this Indenture. An installment of principal, premium, if any, or
interest shall be considered paid on the date it is due if the Trustee or Paying
Agent (other than the Company or any of its Subsidiaries) holds on that date
money designated for and sufficient to pay the installment. The Company shall
pay interest on overdue principal and premium, if any, at the rate borne by the
Security; it shall pay interest, including post-petition interest in the event
of a proceeding under the Bankruptcy Laws, on overdue installments of interest
at the same rate to the extent lawful.
SECTION 4.2 COMMISSION REPORTS.
Whether or not the Company is then subject to Section 13(a) or 15(d) of the
Exchange Act, the Company will file with the Commission (unless such filing is
not permitted under the Exchange Act), so long as the Securities are
outstanding, the annual reports, quarterly reports and other periodic reports
(including financial statements and reports) which the Company would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) if
the Company were so subject, and such documents shall be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so subject. The Company will also in any event (i) within 15 days
of each Required Filing Date, (a) transmit or cause to be transmitted by mail to
all Holders of Securities, as their names and addresses appear in the Security
Register, without cost to such Holders, and (b) file with the Trustee copies of
the annual reports, quarterly reports and other periodic reports which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (ii) if filing such documents by the Company with the Commission is
prohibited under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's cost. The Company also shall comply
with the provisions of TIA ss. 314(a).
SECTION 4.3 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company expressly waives (to the extent that it may lawfully do so) any
stay or extension law or any usury law or other law that would prohibit or
forgive the Company from paying all or any portion of the principal of
(premium, if any) or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture.
SECTION 4.4 NOTICE OF DEFAULT.
The Company will, so long as any Securities are outstanding, deliver to the
Trustee, within 10 days of becoming aware of any Default or Event of Default in
the performance of any covenant, agreement or condition in this Indenture, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
SECTION 4.5 COMPLIANCE CERTIFICATES.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company (which as of the date hereof is December 31), a
written statement signed by the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of
the Company, stating, as to each signer thereof, that:
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under such signer's supervision
and
(2) to the best of such signer's knowledge, based on such review, the
Company has kept, observed, performed and fulfilled in all material respects
each and every condition and covenant contained in this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
condition or covenant, specifying each such default known to such signer and
the nature and status thereof and what action the Company is taking or proposes
to take with respect thereto.
The Company will give the Trustee written notice of a change in the fiscal
year of the Company, within a reasonable time after such change is effected.
SECTION 4.6 LIMITATION ON DIVIDENDS AND OTHER DISTRIBUTIONS.
The Company will not declare or pay any dividends or make any distribution
to holders of its Capital Stock (other than dividends or distributions payable
in Capital Stock of the Company), or purchase, redeem or otherwise acquire or
retire for value any of its Capital Stock or permit any Subsidiary to purchase,
redeem or otherwise acquire or retire for value any of the Company's Capital
Stock if at the time of any of the aforementioned actions an Event of Default
has occurred and is continuing or would exist immediately after giving effect to
such action.
Notwithstanding the foregoing, the provisions of this Section 4.6 will not
prevent the payment of any dividend within 60 days after the date of declaration
when the payment would have complied with the foregoing provisions on the date
of declaration.
SECTION 4.7 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities, if any, and
this Indenture may be served. The office of the Trustee shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in the Borough of Manhattan in The City of New York for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
SECTION 4.8 EXISTENCE.
Subject to Article Five, the Company will do or cause to be done all things
necessary to, and will cause each of its Significant Subsidiaries to, preserve
and keep in full force and effect its corporate existence and the corporate
existence of each of the Significant Subsidiaries, and the rights (charter and
statutory), licenses and franchises of the Company and each of the Significant
Subsidiaries, as applicable, provided, however, that the Company shall not be
required to, or cause any such Significant Subsidiary to, preserve or keep in
force or effect any such right, license or franchise, or any such Significant
Subsidiary's corporate existence, if its Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof would
not materially adversely affect the Company's ability to perform its obligations
under the Indenture and the Securities.
SECTION 4.9 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 and a penalty accrues from such
delinquency, (a) all material taxes, assessments and governmental charges levied
or imposed (i) upon the Company or any of its Subsidiaries or (ii) upon the
income, profits or property of the Company or any of its Subsidiaries and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
would by law become a Lien (as defined herein) upon the property of the Company
or any of its Subsidiaries (other than any Lien permitted by this Indenture);
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted, or where
the failure to effect such payment or discharge would not materially adversely
affect the Company's ability to perform its obligations under the Indenture and
the Securities.
SECTION 4.10 MAINTENANCE OF PROPERTIES.
The Company shall, and shall cause each of its Significant Subsidiaries to,
cause all material properties owned by the Company or the Significant
Subsidiaries or used in the conduct of its business or the businesses of the
Significant Subsidiaries to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and cause to be made all repairs, renewals, replacements,
betterments and improvements thereof, all as shall be reasonably necessary so
that the business carried on in connection therewith may be conducted at all
times in the ordinary course; provided, however, that nothing in this Section
4.10 shall prevent the Company or any of its Subsidiaries from discontinuing the
operation and maintenance of any of such properties if (x) such discontinuance
is, in the judgement of the Company or the Subsidiary, desirable in the conduct
of its businesses or (y) if such discontinuance or disposal is not materially
adverse to the Company and its Subsidiaries taken as a whole or the ability of
the Company to otherwise satisfy its obligations hereunder.
SECTION 4.11 INSURANCE.
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Company in good faith to be financially sound and responsible, against loss
or damage to the extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties (which may include
self-insurance, if reasonable and in comparable form to that maintained by
companies similarly situated).
SECTION 4.12 LIMITATION ON LIENS.
The Company will not, directly or indirectly, create, incur or assume any
mortgage, pledge, deed of trust, financing lease or security interest ("Liens")
on any of its properties whether now or hereafter acquired, or any income or
profits therefrom, or assign or convey any right to receive income therefrom
(any such Lien, an "Initial Lien"), unless prior to or simultaneously with the
inception of such Initial Lien, the Company shall have delivered to the Trustee
a security agreement or security agreements and such other documents as the
Trustee may reasonably request, each in form and substance satisfactory to the
Trustee, granting to the Trustee an equal and ratable security interest in such
property subject to such Initial Lien, such security interest to be for the
equal and ratable benefit of the Holders. Any such security interest created in
favor of the Securities will be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien to which it
relates. Notwithstanding the foregoing, the restrictions set forth in this
paragraph shall not apply if at the time of, and immediately after giving pro
forma effect to, the transaction giving rise to such Initial Lien, the
Consolidated Indebtedness-to-Stockholders' Equity Ratio does not exceed 4.0 to
1.0.
The foregoing restrictions shall not apply to:
(i) Liens securing obligations outstanding from time to time under any
revolving credit agreement to which the Company is a party;
(ii) Liens on assets existing at the time of acquisition thereof by the
Company, provided that such Liens were in existence prior to such acquisition
and were not created in contemplation of such acquisition;
(iii) Liens on assets of another Person existing at the time such Person is
merged into or consolidated with the Company, provided that such Liens were in
existence prior to such merger or consolidation and were not created in
contemplation of such merger or consolidation and do not extend to any assets of
the Company other than those previously owned by the Person merged into or
consolidated with the Company;
(iv) Liens securing Purchase Money Indebtedness, but only on assets in
respect to the purchase of which such Purchase Money Indebtedness shall have
been incurred;
(v) Liens on real property;
(vi) Liens in favor of any Subsidiary of the Company;
(vii) Liens incurred or deposits made in the ordinary course of business
(w) in connection with workers' compensation, unemployment insurance, social
security or other like laws, (x) to secure the performance of letters of credit,
bids, tenders, trade contracts (other than for borrowed money), sales contracts,
leases, statutory obligations, surety, appeal and performance bonds and other
similar obligations, (y) in connection with the opening of commercial letters of
credit naming the Company or any of its Subsidiaries as an account party, or (z)
for the benefit of any governmental agency or body created or approved by law or
governmental regulation as a condition to the transaction of business or the
exercise of any privilege, franchise or license;
(viii) Liens securing Lease Obligations; provided, however, that no such
Lease Obligations shall arise out of the Sale and Leaseback of Transportation
Equipment unless the Sale and Leaseback in question is entered into prior to, at
the time of or within 180 days of the acquisition of the Transportation
Equipment being sold and leased back; and provided, further, that the leasing of
Transportation Equipment which has been remanufactured so that it is the
substantial equivalent of new equipment shall be considered the leasing of new
equipment and not of the used equipment which was remanufactured and
subsequently sold and leased back;
(ix) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by appropriate
proceedings, provided that any reserve or other appropriate provision as shall
be required in conformity with generally accepted accounting principles shall
have been made therefor;
(x) Liens imposed by law, including but not limited to carriers', seamen's,
stevedores', wharfinger's, warehousemen's, mechanics', suppliers', material-
men's, repairman's or other like Liens, in each case for sums not yet due or
being contested in good faith by appropriate proceedings, or other Liens arising
out of judgments or awards against the Company or any of its Subsidiaries with
respect to which the Company or such Subsidiary shall then be proceeding with an
appeal or other proceeding for review;
(xi) Leases, lease agreements and other contracts entered into in the
ordinary course of business providing for the leasing, sale or exchange of
Transportation Equipment owned by the Company;
(xii) Liens securing hedging obligations;
(xiii) Liens (x) existing on the date of the Indenture and (y) to secure
any renewal, extension, substitution, refunding, defeasance, refinancing,
repayment or replacement (a "Refinancing") (or successive Refinancings), in
whole or in part, of any Indebtedness (or commitment for Indebtedness) existing
on the date of this Indenture, provided, however, that the Indebtedness secured
by such Lien is not, solely by virtue of such Refinancing, increased to an
amount greater than the greater of (A) the outstanding principal amount of such
Indebtedness existing on the date of the Indenture that is secured by such Lien
or (B) if such Lien secures Indebtedness under a line of credit, the commitment
amount of such line of credit existing on the date of this Indenture; and
(xiv) Liens incurred in the ordinary course of business of the Company with
respect to obligations that do not exceed $1.0 million at any one time
outstanding and that (x) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (y) do not in the aggregate materially detract
from the value of the assets subject to such Lien or materially impair the use
thereof in the operation of business by the Company.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge into, or transfer all or
substantially all of its assets to, another Person in any transaction in which
the Company is not the continuing or surviving entity unless (i) the
resulting, surviving or transferee Person is a corporation which expressly
assumes by supplemental indenture all the obligations of the Company under the
Securities and this Indenture; (ii) such corporation is organized and existing
under the laws of the United States, a State thereof or the District of
Columbia; (iii) immediately after giving effect to such transaction no Default
or Event of Default shall have happened and be continuing, and the Officers'
Certificate referred to in the following clause reflects that such Officers are
not aware of any such Default or Event of Default that shall have happened and
be continuing, and (iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with
this Indenture.
SECTION 5.2 SUCCESSOR CORPORATION OR TRUST SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or substantially
all of the assets of the Company in accordance with Section 5.1, 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 under this Indenture with the
same effect as if such successor corporation has been named as the Company
herein, and thereafter all obligations of the Company shall terminate.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
An "Event of Default" occurs if, with respect to the Securities:
(1) the Company defaults in the payment of interest on the Securities when
the same becomes due and payable and the default continues for a period of 30
days;
(2) the Company defaults in the payment of the principal of (and premium,
if any, on) the Securities when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements in the
Securities or this Indenture and the default continues for the period and after
the notice specified in the last paragraph of this Section 6.1;
(4) there shall be a default under any bond, debenture, note or other
evidence of Indebtedness or under any mortgage, indenture or other instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness of the Company or any Significant Subsidiary, whether any such
Indebtedness now exists or shall hereafter be created, if (a) either (i) such
event of default results from the failure to pay any such Indebtedness at
maturity or (ii) as a result of such event of default, the maturity of such
Indebtedness has been accelerated prior to its expressed maturity, provided
that any such failure to pay shall not be cured and any such acceleration shall
not be rescinded or annulled or the accelerated amount paid within ten days
after notice to the Company of such failure to pay or acceleration, or such
Indebtedness having been discharged and (b) the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal or interest thereon, or the maturity of
which has been so accelerated, aggregates $10,000,000 or more;
(5) the Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or pro-
ceeding,
(B) consents to the entry of an order
for relief against it in an involuntary
case or proceeding,
(C) consents to the appointment of a
Custodian of it or for all or sub-
stantially all of its property, or
(D) makes a general assignment for the
benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company or
any Significant Subsidiary in an
involuntary case or proceeding,
(B) appoints a Custodian of the Company
or any Significant Subsidiary or for
all or substantially all of their
respective property, or
(C) orders the liquidation of the
Company or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days.
A default under clause (3) is not an Event of Default with respect to the
Securities until the Trustee notifies the Company, or the Holders of a majority
in principal amount of the Securities then outstanding notify the Company and
the Trustee in writing, of the default and the Company does not cure the default
within 60 days after receipt of such notice. The notice must specify the
default, demand that it be remedied and state that the notice is a "Notice of
Default." Such notice by the Trustee shall not be deemed to be a certification
by the Trustee as to whether an Event of Default has occurred. Failure of the
Trustee to give such notice does not constitute a waiver of any of its rights
hereunder.
SECTION 6.2 ACCELERATION.
If an Event of Default occurs and is continuing with respect to the
Securities, the Trustee by notice to the Company, or the Holders of a majority
in principal amount of the Securities then outstanding by written notice to the
Company and the Trustee, may declare to be due and payable immediately the
principal amount of the Securities plus accrued interest to the date of
acceleration. Upon any such declaration, such amount shall be due and payable
immediately, and upon payment of such amount all of the Company's obligations
with respect to the Securities, other than obligations under Section 7.7, shall
terminate. The Holders of a majority in principal amount of the outstanding
Securities by written notice to the Trustee may rescind an acceleration and its
consequences if (x) all existing Events of Default with respect to the
Securities, other than the non-payment of the principal of the Securities, which
have become due solely by such declaration of acceleration, have been cured or
waived, (y) to the extent that 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 (z) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. The Trustee may rely upon such notice of rescission
without any independent investigation as to the satisfaction of conditions (x),
(y) and (z).
SECTION 6.3 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 (and premium, if any) or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4 WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
Subject to Section 10.2, the Holders of a majority in principal amount of
the Securities then outstanding, on behalf of the Holders of the Securities, by
written notice to the Trustee may waive a Default or Event of Default with
respect to the Securities and its consequences. When a Default is waived with
respect to the Securities it is cured and ceases to exist and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture.
SECTION 6.5 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities then
outstanding may direct in writing the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on it with respect to the Securities. The Trustee, however, may
refuse to follow any direction (i) that conflicts with law or this Indenture,
(ii) that the Trustee, in its reasonable discretion, determines may be unduly
prejudicial to the rights of other Securityholders or that may involve the
Trustee in personal liability or (iii) for which the Trustee determines, in its
reasonable discretion, that it does not have adequate indemnification pursuant
to Section 7.1(e); provided, that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 6.6 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provisions of this Indenture, the right of any
Holder of a Security to receive payment of principal of, premium, if any, and
interest on such Security, on or after the respective due dates expressed in
such Security, 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 6.7 COLLECTION SUIT BY TRUSTEE.
If an Event of Default with respect to the Securities in payment of
interest or principal (and premium, if any) specified in Section 6.1(1) or (2)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of unpaid principal (and premium, if any) and
accrued interest remaining unpaid on the Securities, together with interest on
overdue principal (and premium, if any) and to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate borne by the Securities and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.8 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 Holders of
Securities allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same. Any
Custodian in any such judicial proceeding is hereby authorized by each
Securityholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders of
Securities to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.9 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6 with respect
to the Securities, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under
Section 7.7, including payment of all compensa-
tion, expenses and liabilities incurred, and
all advances made by the Trustee and the costs
and expenses of collection;
SECOND: to Holders of Securities for amounts
due and unpaid on the Securities for principal
of (and premium, if any) and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on
the Securities for principal (and premium, if
any) and interest, respectively;
THIRD: to the Company or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities pursuant to this Section 6.9.
SECTION 6.10 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 attorney's 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 6.10
does not apply to a suit by the Trustee, a suit by a Holder pursuant to section
6.6 or a suit by Holders of more than 10% in principal amount of the Securities
then outstanding.
SECTION 6.11 LIMITATIONS ON SUITS.
Subject to Section 6.6, a Holder of Securities may not pursue any remedy
with respect to this Indenture or the Securities unless:
(1) the Holder has given the Trustee written notice of a continuing Event
of Default;
(2) the Holders of at least 25% in principal amount of Securities make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expenses;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, request and offer of indemnity; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60 day period by the Holders of a majority in principal
amount then outstanding.
A Holder of any Security may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
ARTICLE 7
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of 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 others, and no implied
covenants or obligation shall be read into 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. The Trustee, however, shall examine the
certificates and opinions to determinate 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 7.1.
(2) The Trustee shall not be liable for any error in judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1.
(e) Subject to subsection (c), the Trustee may refuse to perform any duty
or exercise any right or power unless, subject to the provisions of the TIA, it
receives indemnity satisfactory to it against any loss, liability, expense or
fee.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on and shall be protected in acting
or refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both, which shall conform to
Section 11.5 hereof. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or Opinion
of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel, and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by the Trustee
hereunder in good faith and reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of the Securities or the Company unless such Holders or the Company
shall have offered to the Trustee reasonable security or indemnify against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee, however, is subject to Sections 7.10 and
7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement of the
Company in the Indenture or any statement in the Securities other than its
certificate of authentication or in any document used in the sale of the
Securities other than any statement in writing provided by the Trustee expressly
for use in such document.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee with respect to the Securities, the Trustee shall mail to
each Holder of Securities notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a default in payment of principal
of, premium, if any, or interest on any Security, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Holders of
Securities. Notwithstanding anything to the contrary expressed in this
Indenture, the Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless and until a Trust Officer shall have actual knowledge
thereof, or shall have received written notice thereof from the Company at its
principal corporate trust office in New York, New York. The Trustee shall not be
deemed to have actual knowledge of an Event of Default hereunder, except in the
case of an Event of Default under Sections 6.1(1) or 6.1(2) (provided that the
Trustee is the Paying Agent) until a Trust Officer receives written notice
thereof from the Company or any Securityholder that such an Event of Default has
occurred.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, beginning with May 15, 1998, the Trustee,
if required by the provisions of TIA ss. 313(a), shall mail to each
Securityholder a brief report dated as of May 15 of such year that complies
with TIA ss. 313(a). The Trustee also shall comply with TIA ss.(b) and ss.
313(c).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the Commission and each stock exchange on which the Securities are
listed. The Company agrees to notify the Trustee in writing whenever the
Securities become listed or delisted on or from any stock exchange.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services (which compensation shall not be limited by any
provision of law in regard to the 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 addition to the
compensation for its services. Such expenses may include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel.
The Company shall indemnify the Trustee for, and hold it harmless against,
any loss or liability incurred by it in connection with the acceptance or
administration of this trust or its actions taken hereunder in whatever capacity
the Trustee is so acting, including the costs and expenses of defending itself
against any claim or liability in connection with the Securities or the exercise
or performance of any of its powers or duties hereunder, including attorneys'
fees and expenses. The Trustee shall notify the Company as soon as practicable
after the Trustee becomes aware of any claim asserted against the Trustee for
which it intends to seek indemnity (though failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder unless
the Company is prejudiced thereby) and the Company may elect by written notice
to the Trustee to assume the defense of any such claim at the Company's expense
with counsel reasonably satisfactory to the Trustee, provided, however, that in
the case where there is a conflict between the Company and the Trustee, the
Company shall pay the reasonable fees and expenses of counsel retained by the
Trustee.
The Company need not reimburse the Trustee for any expense or indemnify it
against any loss or liability incurred by it through the Trustee's negligence,
bad faith or willful misconduct. The Company shall not be liable for any
settlement of any claim or action effected without the Company's consent, which
consent shall not be unreasonably withheld.
The Company hereby grants the Trustee a security interest in all of the
funds and assets of the Company held by the Trustee pursuant to this Indenture
to secure the performance of the Company's obligations to the Trustee hereunder.
The obligations of the Company under this Section 7.7 shall survive the
resignation or removal of the Trustee and/or the satifaction or discharge of
this Indenture.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the Company's written consent. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(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 appoint a successor
Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall, upon payment of its charges, 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. Notwithstanding
the replacement of the Trustee pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee with respect to expenses and liabilities incurred by it and compensation
earned by it prior to such replacement or otherwise with respect to the
Securities or the Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation, 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 ss. 310(a)(1). The Trustee shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b), including the optional
provision permitted by the second sentence of TIA ss. 310(b)(9).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have Section 8.2
or Section 8.3 be applied to all outstanding Securities upon compliance with the
conditions set forth below in this Article 8.
SECTION 8.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this Section
the Company shall be deemed to have been discharged from its obligations with
respect to the outstanding Securities on the date the conditions set forth in
Section 8.4 are satisfied ("Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.5 and the other
Sections of this Indenture referred to in Paragraphs (a) and (b) below, and to
have satisfied all of its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same following delivery by the Company to the Trustee of an Officer's
Certificate and Opinion of Counsel stating that all such conditions have been
satisfied), except for the following which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders to receive, solely from the trust fund described
in Section 8.4 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and interest on such Securities when
such payments are due,
(b) the Company's obligations with respect to such Securities under
Sections 2.4, 2.5, 2.9, 2.10, 2.12 and 4.7.
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and
(d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 with respect to such Securities.
SECTION 8.3 COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this Section
8.3, the Company shall be released from its obligations under Sections 4.9,
4.10, 4.11 and 4.12 with respect to the outstanding Securities on and after the
date the conditions set forth in Section 8.4 are satisfied ("Covenant
Defeasance"), and the Securities shall thereafter be deemed to be not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with
Sections 4.9, 4.10, 4.11 and 4.12, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default
under Section 6.1(4), 6.1(5) or 6.1(6) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and the Securities
shall be unaffected thereby.
SECTION 8.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 8.2 or
Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 7.10
who shall agree to comply with the provisions of this Article 8 applicable to
it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities, (i) cash in an amount in which such Securities
are then specified as payable at stated maturity, (ii) U.S. Government
Obligations applicable to such Securities which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal
of (and premium, if any) and interest, if any, on such Securities, money in an
amount, or (iii) a combination thereof, in any case, in an amount, sufficient,
without consideration of any reinvestment of such principal and interest, 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 (and premium, if any) and
interest on the outstanding Securities on the stated maturity of such principal
(and premium, if any) or installment of principal or interest; provided that the
Trustee shall have been irrevocably instructed in writing to apply such money or
the proceeds of such U.S. Government Obligations to said payments with respect
to the Securities. Before such a deposit, the Company may give to the Trustee,
in accordance with Section 3.1(b) hereof, a notice of its election to redeem all
or any portion of the outstanding Securities at a future date in accordance with
the terms of the Securities and Article 3 hereof, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given effect
in applying the foregoing.
(b) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of or constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which it is bound.
(c) No Default or Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit or, insofar as
Section 6.1(5) or 6.1(6) is concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 8.2, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
outstanding Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Defeasance had not occurred.
(e) In the case of an election under Section 8.3, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
the outstanding Securities 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.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to Defeasance under Section 8.2 or Covenant Defeasance under Section
8.3 (as the case may be) have been complied with and an Opinion of Counsel to
the effect that either (i) as a result of a deposit pursuant to Paragraph (a)
above and the related exercise of the Company option under Section 8.2 or
Section 8.3 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with respect to the
trust funds representing such deposit or by the Trustee for such trust funds, or
(ii) all necessary registrations under said Act have been effected.
SECTION 8.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
All money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 8.4 in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities of
all sums due and to become due thereon in respect of principal (and premium, if
any), interest, if any, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the outstanding Securities.
Anything in this Article 8 to the contrary notwithstanding, subject to
Section 7.7, the Trustee shall deliver or pay to the Company from time to time
upon Company Order any money or U.S. Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 8.4 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 Defeasance or Covenant Defeasance, as applicable, in accordance with this
Article 8.
ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE.
The Indenture shall upon Company Order cease to be of further effect with
respect to the Securities (except as to any surviving rights of registration of
transfer or exchange of Securities expressly provided for herein or pursuant
hereto, the rights of Holders of outstanding Securities to receive, solely from
the trust fund described in subclause (ii) of clause (a) of this Section,
payments in respect of the principal of (and premium, if any) and interest on
such Securities when such payments are due, and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
(a) either
(1) all the Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.10 and
(B) Securities for whose payment money has theretofore been depos-
ited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 2.5) have been delivered to the Trustee for
cancellation; or
(2) all the Securities not theretofore delivered to the Trustee
for cancellation
(A) have become due and payable,
(B) will become due and payable at their
stated maturity within one year or
(C) will be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust an amount sufficient to pay
and discharge the entire indebtedness on the Securities, for
principal (and premium, if any) and interest, to the date of
such deposit (in the case of Securities which have become due
and payable) or to the stated maturity or Redemption Date, as
the case may be;
(b) The Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) The Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided fore relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 7.7 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (ii) of clause (a) of this Section 9.1, the obligations of
the Trustee under Section 9.2 shall be unaffected hereby.
SECTION 9.2 APPLICATION OF TRUST FUNDS.
All money deposited with the Trustee pursuant to Section 9.1 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and any interest for whose payment such money has been deposited or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE 10
SUPPLEMENTAL INDENTURES
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by Board Resolution, and the Trustee at any
time and from time to time, may amend this Indenture or enter into one or more
indentures supplemental hereto, to be in a form satisfactory to the Trustee
without notice to or consent of any Securityholder for any of the following
purposes:
(1) to comply with Section 5.1; or
(2) to provide for uncertificated Securities in addition to or in place of
certificated Securities; or
(3) to add to the covenants of the Company, for the benefit of the Holders
of all of the Securities, or to surrender any right or power herein conferred
upon the Company; or
(4) to add any Events of Default; or
(5) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with any provision of this
Indenture, provided such other provisions shall not adversely affect the
interests of the Holders of Securities in any material respect.
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding, the
Company, when authorized by Board Resolution, and the Trustee may amend this
Indenture or from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the TIA
as in force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture, except as otherwise permitted
by Section 10.1, or of modifying in any manner the rights of the Holders of the
Securities. Subject to Section 10.4, without the consent of each Holder of
Securities, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4, may not:
(1) extend the fixed maturity of any Securities, or reduce the principal
amount thereof or premium, if any, or reduce the rate or extend the time of
payment of interest thereon, without the consent of the Holder of each Security;
(2) reduce the aforesaid percentage of Securities, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of all Securities then outstanding;
(3) waive (except, unless theretofore cured) a default in the payment of
the principal of (and premium, if any on), interest on or redemption amounts
with respect to any Security; or
(4) make any Security payable in money other than that stated in the
Security; or
(5) make any change in Sections 6.4 or 6.6 or in this sentence of Section
10.2.
Upon the written request of the Company, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless the Trustee, in its reasonable discretion,
determines that such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its reasonable discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice, setting forth in general terms the substance of such
supplemental indenture, to all Holders of Securities as the names and addresses
of such Holders shall appear on the registry books. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 10.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 10.4 REVOCATION AND EFFECT OF CONSENTS.
Subject to this Indenture, each amendment, supplement or waiver evidencing
other action shall become effective in accordance with its terms. Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder even if notation of the
consent is not made on any Security. Any such Holder or subsequent Holder,
however, may revoke the consent as to his Security or portion of a Security, if
the Trustee receives the written notice of revocation before the date the
amendment, waiver or other action becomes effective.
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. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders on such record date (or their duly designated proxies) and only those
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 consent shall be valid or effective for
more than 90 days after such record date unless consent from Holders of the
principal amount of Securities then outstanding required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder.
SECTION 10.5 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may request the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security 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 Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms, the
cost and expense of which will be borne by the Company.
SECTION 10.6 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities shall be bound thereby.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 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 provisions shall control.
SECTION 11.2 NOTICES.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, or
first class mail, postage prepaid (except that any notice by the Trustee to the
Company of a default or an Event of Default under this Indenture shall be by
registered or certified mail, postage prepaid, return receipt requested), or by
a nationally-recognized overnight express courier service (which notices or
communications shall be deemed received the Business Day after the receipt
thereof by such service), addressed as follows:
if to the Company:
Interpool, Inc.
211 College Road East
Princeton, New Jersey 08540
Attention: Chief Financial Officer
if to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust
The Company or the Trustee by notice to the other may designate additional or
different addresses as shall be furnished in writing by either party. Any notice
or communication to the Company or the Trustee shall be deemed to have been
given or made as of the date so delivered if personally delivered, and five (5)
calendar days after mailing if sent by registered or certified mail (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 Securityholder shall be mailed to
the address of such Securityholder as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders. If
a notice or communication is mailed in the manner provided above, it is 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.
If the Company mails any notice or communication to Securityholders, it
shall mail a copy to the Trustee and all Agents at the same time.
SECTION 11.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company 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 11.5) stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in
Section 11.5) stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 11.5 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, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such
covenant or condition has been complied with.
SECTION 11.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for its
functions.
SECTION 11.7 RECORD DATE.
Whenever the Company or the Trustee solicits an act of Securityholders, the
Company or the Trustee may fix in advance of the solicitation of such act a date
as the record date for determining Securityholders entitled to perform said act.
The record date shall be not more than 15 days prior to the date fixed for the
solicitation of said act.
SECTION 11.8 BUSINESS DAYS.
If a payment date is not a Business Day, payment may be made on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
SECTION 11.9 GOVERNING LAW.
The laws of the State of New York shall govern this Indenture and the
Securities without regard to principles of conflicts of law.
SECTION 11.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary thereof. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.11 NO RECOURSE AGAINST OTHERS.
No shareholder, director or officer, as such, past, present or future, of
the Company or of any successor corporation or trust shall have any liability
for any obligation of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
SECTION 11.12 SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 11.13 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 the
same agreement.
SECTION 11.14 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 11.15 SEVERABILITY.
In case any provision in this Indenture or in the Securities 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, and a Holder shall have no claim therefor against any party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
INTERPOOL, INC.
By: /s/ Martin Tuchman
Name: Martin Tuchman
Title: Chairman and Chief
Executive Officer
UNITED STATES TRUST COMPANY OF
NEW YORK
as Trustee
By: /s/ Louis P. Young
Authorized Officer
<PAGE>
EXHIBIT A
(FORM OF FACE OF ORIGINAL SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY "AFFILIATE" OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) IN A MINIMUM PRINCIPAL AMOUNT OF
$100,000 TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY, AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM
THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM
DATED JULY 24, 1997. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
<PAGE>
INTERPOOL, INC.
7.35% Notes due 2007
CUSIP No. _________ $__________
No. __
Interpool, Inc., a Delaware corporation (the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________ or registered assigns, the
principal sum of $___________ on August 1, 2007 (the "Maturity Date"), and to
pay interest on the outstanding principal amount hereof from July 29, 1997, or
from the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, semi-annually
(subject to deferral as set forth herein) in arrears on February 1 and August 1
of each year, commencing February 1, 1998 at the rate of 7.35% per annum until
the principal hereof shall have become due and payable, and at the same rate per
annum on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded semi-annually;
provided, however, that if a Ratings Decision (as defined in the Indenture)
shall not have occurred by the 90th day after the Issue Date, the rate per annum
set forth above shall automatically and irrevocably increase to 7.6% per annum
effective retroactively from the Issue Date. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months and, for any period less than a full calendar month, the
number of days elapsed in such month. In the event that any date on which the
principal of or interest on this Security is payable is not a Business Day, then
the payment payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date. Pursuant to the
Registration Rights Agreement, in certain limited circumstances the Company
will be required to pay Liquidated Damages (as defined in the Registration
Rights Agreement) with respect to this Security.
The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the person in whose name this Security (or one or more Predecessor Securities,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the January 15
or July 15 immediately preceding the relevant interest payment date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the holders on such regular record date and may be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that, payment
of interest may be made at the option of the Company by (i) check mailed to the
holder at such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto, provided that
proper written transfer instructions have been received by the relevant record
date.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Interpool, Inc.
By: ______________________
Name:
Title:
Attest:
By: ______________________
Name:
Title:
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated _________________________
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By: ______________________
Authorized Officer
<PAGE>
(FORM OF REVERSE OF SECURITY)
INTERPOOL, INC.
7.35% Notes due 2007
1. INTEREST. Interpool, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above; provided, however, that such rate per annum shall
increase to 7.6% per annum, effective retroactively from the Issue Date, if a
Ratings Decision (as defined in the Indenture) shall not have occurred by the
90th day after the Issue Date. The Company will pay interest semiannually on
February 1 and August 1 of each year, beginning February 1, 1998. Interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of initial issuance of the
Securities; provided, that, if there is no existing Default in the payment of
interest, and if this Security is authenticated between a record date referred
to on the face hereof and the next succeeding interest payment date, interest
shall accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Pursuant to the Registration Rights Agreement, in certain limited
circumstances the Company will be required to pay Liquidated Damages (as defined
in the Registration Rights Agreement) with respect to this Security.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are the registered Holders of the
Securities at the close of business on the January 15 or July 15 next
preceding the interest payment date. 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. The Company, however, may
pay principal, premium, if any, and interest by its check payable in such money.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose; provided, however,
that, payment of interest may be made at the option of the Company by (i) check
mailed to the holder at such address as shall appear in the Security Register or
(ii) by transfer to an account maintained by the Person entitled thereto,
provided that proper written transfer instructions have been received by the
relevant record date.
The foregoing notwithstanding, principal of and premium, if any, and
interest on Securities which are represented by Global Securities held of record
by the Depositary will be payable in same-day funds.
3. REGISTRAR AND AGENTS. Initially, United States Trust Company of New York
will act as Registrar, Paying Agent and agent for service of notices and de-
mands. The Company or any of its subsidiaries may act as Paying Agent. The
address of United States Trust Company of New York is 114 West 47th Street, New
York, New York 10036, Attention: Corporate Trust and Agency Division.
4. INDENTURE; LIMITATIONS. The Company issued the Securities under an
Indenture dated as of July 29, 1997 (the "Indenture"), between the Company and
United States Trust Company of New York, as trustee (in such capacity, the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code 77aaa-77bbbb) as in effect on the date of
the Indenture. The Securities are subject to all such terms, and the Holders of
the Securities are referred to the Indenture and said Act for a statement of
them.
The Securities are general unsecured obligations of the Company limited to
$150,000,000 aggregate principal amount. The Indenture imposes certain
limitations on the ability of the Company to, among other things, incur liens,
make payments in respect of its Capital Stock, merge or consolidate with any
other Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
5. OPTIONAL REDEMPTION BY THE COMPANY. The Company may redeem the
Securities, at any time, in whole or from time to time in part, at the election
of the Company, at a Redemption Price equal to the sum of (i) the principal
amount of the Securities being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Securities. "Make-Whole Amount" means, in connection with any optional
redemption of any Security, the excess, if any of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of any interest accrued to the
date of redemption) that would have been payable in respect of such dollar if
such redemption had not been made, determined by discounting, on a semi-annual
basis, such principal and interest at the Reinvestment Rate (as defined in the
Indenture) (which rate shall be determined as of the third Business Day
preceding the date such notice of redemption is given) from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, over (ii) the aggregate principal amount of the Securities
being redeemed.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in whole multiples thereof. On and after the Redemption Date interest will
cease to accrue on Securities or portions thereof called for redemption.
7. DENOMINATIONS, TRANSFER, EXCHANGE. This Security is one of a duly
authorized issue of Securities of the Company designated as its 7.35% Notes due
2007, limited in aggregate principal amount to $150,000,000. The Securities are
issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture and subject to the transfer
restrictions as may be contained herein and therein from time to time. 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 Securities selected for redemption or register the
transfer of or exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal, premium, if any,
or interest on any Securities remains unclaimed for two years, the Trustee and
the Paying Agent will pay the money back to the Company at its written request.
After that, Holders may look only to the Company for payment.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. Except as set forth in the
Indenture, if the Company irrevocably deposits with the Trustee, in trust, for
the benefit of the Holders, cash, U.S. Government Obligations or a combination
thereof, in such amounts as will be sufficient in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of,
premium, if any and interest on the Securities to redemption or maturity and
comply with the other provisions of the Indenture relating thereto, the Company
will be discharged from certain provisions of the Indenture and the Securities
(including the restrictive covenants described in paragraph 4 above, but
excluding its obligation to pay the principal of and interest on the
Securities).
11. AMENDMENT AND WAIVER. Subject to certain exceptions, without notice to
the Holders of the Securities, the Indenture or the Securities may be amended
with the consent of the Holders of at least a majority in principal amount of
the Securities then outstanding and any existing default or compliance with any
provision may be waived with the consent of the Holders of a majority in
principal amount of the Securities then outstanding. Without the consent of or
notice to any Holder of Securities, the Company may amend the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency
or make any other change that does not adversely affect the rights of any
Securityholder.
12. SUCCESSORS. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
13. DEFAULTS AND REMEDIES. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity satisfactory to
it, subject to the provisions of the TIA, before it enforces the Indenture or
the Securities. Subject to certain limitations, Holders of a majority in
principal amount of the Securities then outstanding may direct the Trustee in
writing in its exercise of any trust or power with respect to the Securities.
The Company is required to file periodic reports with the Trustee as to the
absence of any Default or Event of Default.
14. TRUSTEE DEALINGS WITH THE COMPANY. United States Trust Company of New
York, 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 or
its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
16. AUTHENTICATION. This Security shall not be valid until the Trustee or
any authenticating agent appointed by the Trustee signs the certificate of
authentication on the other side of this Security.
17. REGISTRATION RIGHTS. Pursuant to the Registration Rights Agreement
between the Company and the Initial Purchaser for itself and on behalf of the
Holders of the Original Securities, the Company will be obligated to consummate
an exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for the Company's 7.35% Notes due 2007, which
will have been registered under the Securities Act, in like principal amount and
having terms identical in all material respects as the Original Securities. The
Holders of the Original Securities shall be entitled to receive certain
liquidated damages in the event such exchange offer is not consummated and
upon certain other conditions, all pursuant to and in accordance with the terms
of the Registration Rights Agreement.
18. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= Custodian), AND U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: INTERPOOL,
INC., 211 COLLEGE ROAD EAST, PRINCETON, NEW JERSEY, ATTENTION: INVESTOR
RELATIONS.
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the
Company. The agent may substitute another to act for
such agent.
Date: Your signature:
(Sign exactly as
your name
appears on the other
side of this
Security)
By:
NOTICE: To be
executed by an
executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a participant
in the Securities Transfer Agent Medallion Program ("STAMP") or similar program.
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES1
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
Amount of Amount of Principal Signature of
decrease in increase in Amount of this authorized
Principal Principal Global Security officer of
Amount of Amount of following such Trustee or
Date of this Global this Global decrease (or Securities
Exchange Security Security increase) Custodian
- -----------------------------------------------------------------------------
- --------
1 This schedule should only be added if the Security
is issued in global form.
<PAGE>
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES
Re: 7.35% NOTES DUE 2007 OF INTERPOOL, INC.
This Certificate relates to $______ principal amount of Securities held in
(check applicable box) _____ book-entry or ______ definitive form by _____ (the
"Transferor").
The Transferor (check applicable box):
|_| has requested the Registrar by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above); or
|_| has requested the Registrar by written order to exchange or register
the transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above-captioned Securities and as provided in Section 2.9 of
such Indenture, the transfer of this Security does not require registration
under the Securities Act (as defined below) because (check applicable box):
|_| Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.9(c)(2)(A) or Section
2.9(f)(1)(A) of the Indenture).
|_| Such Security is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) in reliance on Rule 144A (in satisfaction of Section
2.9(c)(2)(B) or Section 2.9(f)(1)(B) of the Indenture) or pursuant to an
effective registration statement under the Securities Act (in satisfaction of
Section 2.9(c)(2)(C) or Section 2.9(f)(1)(C) of the Indenture).
|_| Such Security is being transferred in accordance with Rule 144 under
the Securities Act, or pursuant to an exemption from registration in accordance
with Regulation S under the Securities Act or to an institutional "accredited
investor" within the meaning of Rule 501(A)(1), (2), (3) or (7) under the
Securities Act that is acquiring the Security for its own account, or for the
account of such an institutional accredited investor, in each case in a mini-
mum principal amount of $100,000, not with a view to or for distribution in
violation of the Securities Act (in satisfaction of Section 2.9(c)(2)(C) or
Section 2.9(f)(1)(C) of the Indenture).
|_| Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act,
other than Rule 144A, in accordance with Rule 144 under the Securities Act, or
to an institutional "accredited investor" within the meaning of Rule 501(A)(1),
(2), (3) or (7) under the Securities Act that is acquiring the Security for its
own account, or for the account of such an institutional accredited investor, in
each case in a minimum principal amount of $100,000, not with a view to or for
distribution in violation of the Securities Act, and an Opinion of Counsel to
the effect that such transfer does not require registration under the Securities
Act accompanies this Certificate (in satisfaction of Section 2.9(c)(2)(C) or
Section 2.9(f)(1)(C) of the Indenture).
[INSERT NAME OF TRANSFEROR]
By:
Date:
<PAGE>
EXHIBIT B
(FORM OF FACE OF EXCHANGE SECURITY)1
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
- --------
1 Except as provided in Section 2.4(b) of the Inden-
ture.
<PAGE>
INTERPOOL, INC.
7.35% Notes due 2007
CUSIP No. _________ $__________
No. __
Interpool, Inc., a Delaware corporation (the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ____________, or registered assigns, the
principal sum of (__________) on August 1, 2007 (the "Maturity Date"), and to
pay interest on the outstanding principal amount hereof from July 29, 1997, or
from the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, semi-annually
(subject to deferral as set forth herein) in arrears on February 1 and August 1
of each year, commencing February 1, 1998 at the rate of 7.35% per annum until
the principal hereof shall have become due and payable, and at the same rate per
annum on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded semi-annually;
provided, however, that if a Ratings Decision (as defined in the Indenture)
shall not have occurred by the 90th day after the Issue Date, the rate per annum
set forth above shall automatically and irrevocably increase to 7.6% per annum
effective retroactively from the Issue Date. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months and, for any period less than a full calendar month, the
number of days elapsed in such month. In the event that any date on which the
principal of or interest on this Security is payable is not a Business Day, then
the payment payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date.
The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the person in whose name this Security (or one or more Predecessor Securities,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the January 15
or July 15 immediately preceding the relevant interest payment date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the holders on such regular record date and may be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days prior
to such special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that, payment
of interest may be made at the option of the Company by (i) check mailed to the
holder at such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto, provided that
proper written transfer instructions have been received by the relevant record
date.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Interpool, Inc.
By: _____________________
Name:
Title:
Attest:
By: ______________________
Name:
Title:
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By________________________
Authorized Officer
<PAGE>
(FORM OF REVERSE OF SECURITY)
INTERPOOL, INC.
7.35% Notes due 2007
1. INTEREST. Interpool, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above; provided, however, that such rate per annum shall
increase to 7.6% per annum, effective retroactively from the Issue Date, if a
Ratings Decision (as defined in the Indenture) shall not have occurred by the
90th day after the Issue Date. The Company will pay interest semiannually on
February 1 and August 1 of each year, beginning February 1, 1998. Interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of initial issuance of the
Securities; provided, that, if there is no existing Default in the payment of
interest, and if this Security is authenticated between a record date referred
to on the face hereof and the next succeeding interest payment date, interest
shall accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are the registered Holders of the
Securities at the close of business on the January 15 or July 15 next preceding
the interest payment date. 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. The Company, however, may pay
principal, premium, if any, and interest by its check payable in such money.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose; provided, however,
that, payment of interest may be made at the option of the Company by (i) check
mailed to the holder at such address as shall appear in the Security Register or
(ii) by transfer to an account maintained by the Person entitled thereto,
provided that proper written transfer instructions have been received by the
relevant record date.
The foregoing notwithstanding, principal of and premium, if any, and
interest on Securities which are represented by Global Securities held of record
by the Depositary will be payable in same-day funds.
3. REGISTRAR AND AGENTS. Initially, United States Trust Company of New York
will act as Registrar, Paying Agent and agent for service of notices and de-
mands. The Company or any of its subsidiaries may act as Paying Agent. The
address of United States Trust Company of New York is 114 West 47th Street, New
York, New York 10036, Attention: Corporate Trust and Agency Division.
4. INDENTURE; LIMITATIONS. The Company issued the Securities under an
Indenture dated as of July 29, 1997 (the "Indenture"), between the Company and
United States Trust Company of New York, as trustee (in such capacity, the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code 77aaa-77bbbb) as in effect on the date of
the Indenture. The Securities are subject to all such terms, and the Holders of
the Securities are referred to the Indenture and said Act for a statement of
them.
The Securities are general unsecured obligations of the Company limited to
$150,000,000 aggregate principal amount. The Indenture imposes certain
limitations on the ability of the Company to, among other things, incur liens,
make payments in respect of its Capital Stock, merge or consolidate with any
other Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
5. OPTIONAL REDEMPTION BY THE COMPANY. The Company may redeem the
Securities, at any time, in whole or from time to time in part, at the election
of the Company, at a Redemption Price equal to the sum of (i) the principal
amount of the Securities being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Securities. "Make-Whole Amount" means, in connection with any optional
redemption of any Security, the excess, if any of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of any interest accrued to the
date of redemption) that would have been payable in respect of such dollar if
such redemption had not been made, determined by discounting, on a semi-annual
basis, such principal and interest at the Reinvestment Rate (as defined in the
Indenture) (which rate shall be determined as of the third Business Day
preceding the date such notice of redemption is given) from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, over (ii) the aggregate principal amount of the Securities
being redeemed.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 principal amount may be redeemed in part, but only in whole
multiples thereof. On and after the Redemption Date interest will cease to
accrue on Securities or portions thereof called for redemption.
7. DENOMINATIONS, TRANSFER, EXCHANGE. This Security is one of a duly
authorized issue of Securities of the Company designated as its 7.35% Notes due
2007, limited in aggregate principal amount to $150,000,000. The Securities are
issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. A Holder may register the transfer of or
exchange Securities 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
Securities selected for redemption or register the transfer of or exchange any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal, premium, if
any, or interest on any Securities remains unclaimed for two years, the Trustee
and the Paying Agent will pay the money back to the Company at its written
request. After that, Holders may look only to the Company for payment.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. Except as set forth in the
Indenture, if the Company irrevocably deposits with the Trustee, in trust, for
the benefit of the Holders, cash, U.S. Government Obligations or a combination
thereof, in such amounts as will be sufficient in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of,
premium, if any and interest on the Securities to redemption or maturity and
comply with the other provisions of the Indenture relating thereto, the Company
will be discharged from certain provisions of the Indenture and the Securities
(including the restrictive covenants described in paragraph 4 above, but
excluding its obligation to pay the principal of and interest on the
Securities).
11. AMENDMENT AND WAIVER. Subject to certain exceptions, without notice to
the Holders of the Securities, the Indenture or the Securities may be amended
with the consent of the Holders of at least a majority in principal amount of
the Securities then outstanding and any existing default or compliance with any
provision may be waived with the consent of the Holders of a majority in
principal amount of the Securities then outstanding. Without the consent of or
notice to any Holder of Securities, the Company may amend the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency
or make any other change that does not adversely affect the rights of any
Securityholder.
12. SUCCESSORS. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
13. DEFAULTS AND REMEDIES. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in writing in
its exercise of any trust or power with respect to the Securities. The Company
is required to file periodic reports with the Trustee as to the absence of any
Default or Event of Default.
14. TRUSTEE DEALINGS WITH THE COMPANY. United States Trust Company of New
York, 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 or
its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
16. AUTHENTICATION. This Security shall not be valid until the Trustee or
any authenticating agent appointed by the Trustee signs the certificate of au-
thentication on the other side of this Security.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= Custodian), AND U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: INTERPOOL,
INC., 211 COLLEGE ROAD EAST, PRINCETON, NEW JERSEY, ATTENTION: INVESTOR
RELATIONS.
EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Dated July 29, 1997
between
INTERPOOL, INC.
and
SMITH BARNEY INC.
----------
as Initial Purchaser
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of July 29, 1997, between INTERPOOL, INC., a Delaware corporation (the
"Company"), and SMITH BARNEY INC. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated July 24,
1997 (the "Purchase Agreement"), between the Company, as issuer of the 7.35%
Notes due 2007 (the "Notes"), and the Initial Purchaser, which provides for,
among other things, the sale by the Company to the Initial Purchaser of
$150,000,000 aggregate principal amount of the Company's Notes. In order to
induce the Initial Purchaser to enter into the Purchase Agreement, the Company
has agreed to provide to the Initial Purchaser and its direct and indirect
transferees the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"ADVICE" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"AFFILIATE" shall have the meaning given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 3(t)
hereof.
"BUSINESS DAY" means each day, other than a Saturday or Sunday, which is
not a day on which banking institutions in the City of New York are authorized
or obligated by law or executive order to close.
"CLOSING TIME" shall mean the Closing Time as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"EXCHANGE NOTES" shall mean securities issued by the Company under an
Indenture and containing terms substantially identical to the Notes (except that
they will not contain terms with respect to the transfer restrictions under the
Securities Act, will not require transfers thereof to be in minimum blocks of
$100,000 aggregate principal amount and will not provide for any Liquidated
Damages thereon).
"EXCHANGE OFFER" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes for an equal principal amount of Exchange
Notes pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section 2(a) hereof.
"HOLDER" shall mean the Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its respective successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes under the
Indenture.
"INDENTURE" shall mean the Indenture relating to the Notes dated as of July
29, 1997, between the Company, as issuer, and United States Trust Company of New
York, as trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble to
this Agreement.
"INSPECTORS" shall have the meaning set forth in Section 3(n) hereof.
"ISSUE DATE" shall mean the date of original issuance of the Notes.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 2(e)
hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Notes.
"NOTES" shall have the meaning set forth in the preamble to this Agreement.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in Section
3(t) hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble to
this Agreement.
"RECORDS" shall have the meaning set forth in Section 3(n) hereof.
"REGISTRABLE NOTES" shall mean the Notes; provided, however, that the Notes
shall cease to be Registrable Notes when (i) a Registration Statement with
respect to such Notes for the exchange or resale thereof, as the case may be,
shall have been declared effective under the Securities Act and such Notes shall
have been exchanged or disposed of pursuant to such Registration Statement, (ii)
such Notes shall have been sold or are eligible to be sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act, (iii) such Notes shall have ceased to be
outstanding or (iv) such Notes shall have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradeable by the
holder thereof (other than an Affiliate of the Company).
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes in accordance
with the rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Notes or
Registrable Notes) and compliance with the rules of the NASD, (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for the
Company and of the independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by or incident to
such performance and compliance, (vi) the fees and expenses of the Trustee and
its counsel, and any exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the Exchange Notes or
the Registrable Notes on any securities exchange or exchanges, and (viii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"SHELF REGISTRATION" shall mean a registration effected pursuant to Section
2(b) hereof.
"SHELF REGISTRATION EVENT" shall have the meaning set forth in Section 2(b)
hereof.
"SHELF REGISTRATION EVENT DATE" shall have the meaning set forth in Section
2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"TRUSTEES" shall mean any and all trustees with respect to the Notes.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) EXCHANGE OFFER. To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, the Company shall, for the
benefit of the Holders, at the Company's cost, use its best efforts to (i) cause
to be filed with the SEC within 90 days after the Issue Date an Exchange Offer
Registration Statement on an appropriate form under the Securities Act
covering the Exchange Offer, (ii) cause such Exchange Offer Registration
Statement to be declared effective under the Securities Act within 120 days
after the Issue Date and (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer has been mailed to
the Holders. Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder eligible and electing to
exchange Registrable Notes for an equal principal amount of Exchange Notes
(assuming that such Holder represents that the Holder (i) is not an Affiliate of
the Company, (ii) acquired the Exchange Notes in the ordinary course of such
Holder's business and (iii) has no arrangements or understandings with any
Person to participate in the distribution (within the meaning of the Securities
Act) of the Exchange Notes) to transfer such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities Act and
under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i) mail or cause to be mailed to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less
than 30 days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as the "Exchange
Period");
(iii) utilize the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last Business Day of the Exchange
Period, by sending to the institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Notes delivered for exchange, and a statement that such
Holder is withdrawing its election to have such Notes exchanged;
(v) notify each Holder that any Note not tendered by such Holder in the
Exchange Offer will remain outstanding and continue to accrue interest or
accumulate distributions, as the case may be, but will not retain any rights
under this Agreement (except in the case of the Initial Purchaser and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(i) accept for exchange all Notes or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Notes or portions thereof so accepted for exchange by the Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, new Exchange Notes equal in principal
amount to the principal amount of the Notes as are surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the Exchange Offer will
accrue from the last date on which interest was paid on the Notes surrendered in
exchange therefor or, if no interest has been paid on such Note, from the Issue
Date. To the extent not prohibited by any law or applicable interpretation of
the staff of the SEC, the Company shall use its efforts to complete the Exchange
Offer as provided above, and shall comply with the applicable requirements of
the Securities Act, the Exchange Act and other applicable laws in connection
with the Exchange Offer. Except as provided herein, the Exchange Offer shall not
be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the staff of the SEC.
Each Holder of Registrable Notes who wishes to exchange such Registrable Notes
for Exchange Notes in the Exchange Offer will be required to make certain
customary representations in connection therewith, including, in the case of any
Holder, representations that (i) the Holder is not an Affiliate of the Company,
(ii) the Exchange Notes to be received by it were acquired in the ordinary
course of its business and (iii) at the time of the Exchange Offer, it has no
arrangement with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes. The Company shall inform
the Initial Purchaser, after consultation with the Trustee, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchaser shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Notes in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Notes that are Exchange Notes held
by Participating Broker-Dealers, and the Company shall have no further
obligation to register the Registrable Notes pursuant to Section 2(b) of this
Agreement.
(b) SHELF REGISTRATION. If prior to the expiration of the Exchange Offer:
(i) the Company or the Majority Holders reasonably determine, after conferring
with counsel (which may be in-house counsel), that the Exchange Offer
Registration provided in Section 2(a) above is not available under applicable
law and regulations and currently prevailing interpretations of the staff of the
SEC, (ii) for any reason the Exchange Offer Registration Statement is not
declared effective within 120 days after the Issue Date or (iii) upon the
request of the Initial Purchaser with respect to any Registrable Notes held by
it, if, in the reasonable opinion of Skadden, Arps, Slate, Meagher & Flom LLP or
other counsel experienced in such matters, the Initial Purchaser is not
permitted pursuant to applicable law or applicable interpretations of the staff
of the SEC, to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events specified in
(i)-(iii) being a "Shelf Registration Event" and the date of occurrence thereof,
the "Shelf Registration Event Date"), then in addition to or in lieu of
effecting the registration of the Exchange Notes pursuant to the Exchange Offer
Registration Statement, the Company will (y) promptly deliver to the Holders
written notice thereof and (z) at the Company's sole expense: (a) as promptly as
practicable after such Shelf Registration Event Date file a Shelf Registration
covering resales of the Notes and (b) use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act. No
Holder of Registrable Notes shall be entitled to include any of its Registrable
Notes in any Shelf Registration pursuant to this Agreement unless and until such
Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the Company may,
after conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder as
to which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its best efforts to keep effective the Shelf
Registration Statement until the earlier of two years after the Issue Date
(six months in the case of a Shelf Registration Statement filed at the request
of the Initial Purchaser under Section 2(b)(iii) hereof) or such time as all of
the applicable Notes have been sold thereunder or otherwise cease to be
Registrable Notes within the meaning of this Agreement (the "Effectiveness
Period"). The Company shall not permit any securities other than Registrable
Notes to be included in the Shelf Registration. The Company will, in the event a
Shelf Registration Statement is filed, provide to each Holder copies of the
Prospectus that is a part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration Statement for the Notes has become effective
and take certain other actions as are required to permit unrestricted resales
of the Notes. The Company further agrees, if necessary, to supplement or amend
the Shelf Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules
and regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Notes copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) EXPENSES. The Company, as issuer of the Notes, shall pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and/or 2(b) hereof and will reimburse the Initial Purchaser for the
reasonable fees and disbursements of Skadden, Arps, Slate, Meagher & Flom LLP,
counsel for the Initial Purchaser, incurred in connection with the Exchange
Offer and either Skadden, Arps, Slate, Meagher & Flom LLP or any one other
counsel designated in writing by the Majority Holders to act as counsel for the
Holders of the Registrable Notes in connection with a Shelf Registration
Statement, which other counsel shall be reasonably satisfactory to the Company.
Except as provided herein, each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Notes pursuant to the Shelf
Registration Statement.
(d) EFFECTIVE REGISTRATION STATEMENT. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable Notes pursuant
to such Exchange Offer Registration Statement or Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume. The Company will be deemed not to
have used its best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if it voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
that would result in the Holders of Registrable Notes covered thereby not being
able to exchange or offer and sell such Registrable Notes during that period
unless such action is required by applicable law.
(e) LIQUIDATED DAMAGES. If the Company fails to comply with this Agreement
or if the Exchange Offer Registration Statement or the Shelf Registration
Statement fails to become effective, then, Liquidated Damages shall become
payable in respect of the Notes as follows:
(i) if (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is filed with the SEC on or prior to
the 90th day after the Issue Date or (B) notwithstanding that the
Company has consummated or will consummate an Exchange Offer, the
Company is required to file a Shelf Registration Statement and such
Shelf Registration Statement is not filed on or prior to the date
required by the Registration Rights Agreement, then commencing on the
day after either such required filing date, Liquidated Damages shall be
payable on the principal amount of the Notes at the rate of 0.25% per
annum; or
(ii) if (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by the SEC on
or prior to the 30th day after the applicable required filing date or
(B) notwithstanding that the Company has consummated or will consummate
an Exchange Offer, the Company is required to file a Shelf Registration
Statement and such Shelf Registration Statement is not declared
effective by the SEC on or prior to the later of the 30th day after the
date such Shelf Registration Statement was required to be filed and the
120th day after the Issue Date then, commencing on (y) the 31st day
after the applicable required filing date in the case of (A) above, or
(z) the later of the 31st day after the date such Shelf Registration
Statement was required to be filed and the 121st day after the Issue
Date in the case of (B) above, Liquidated Damages shall be payable on
the principal amount of the Notes at the rate of 0.25% per annum; or
(iii) if (A) the Company has not exchanged Exchange Notes for
all Notes validly tendered, in accordance with the terms of the
Exchange Offer on or prior to the 45th day after the date on which the
Exchange Offer Registration Statement was declared effective or (B) if
applicable, the Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be available
for use by Holders at any time prior to (y) the second anniversary of
the Issue Date or (z) the expiration of 90 days from the effective date
of Registration Statement filed at the request of the Initial Purchaser
(other than after such time as all Notes have been disposed of
thereunder or otherwise cease to be Registrable Notes within the
meaning of this Agreement), and such event continues for a period
exceeding 30 consecutive days or 90 days (whether or not consecutive)
in any 360-day period, then Liquidated Damages shall be payable on the
principal amount of Notes at a rate of 0.25% per annum commencing on
(x) the 46th day after such effective date, in the case of (A) above,
or (y) the 30th consecutive day or 91st day in any 360-day period
following the day such Shelf Registration Statement ceases to be
available in the case of (B) above;
provided, however, that the Liquidated Damages on the Notes may not exceed in
the aggregate 0.25% per annum; provided, further, however, that (1) upon the
filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of clause (i) above), (2) upon the effectiveness of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in the
case of clause (ii) above), or (3) upon the exchange of Exchange Notes for all
Notes tendered (in the case of clause (iii)(A) above), or upon the availability
of the Shelf Registration Statement which had ceased to be available (in the
case of clause (iii)(B) above), Liquidated Damages on the Notes shall cease to
be payable.
Any amounts of Liquidated Damages due pursuant to clause (i), (ii) or (iii)
above will be payable in cash on the next succeeding February 1 and August 1, as
the case may be, to the Holders of record at the close of business on the
January 15 or July 15 immediately preceding such date.
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies available to the
Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. REGISTRATION PROCEDURES. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall use its best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Notes by the
selling Holders thereof and, in the case of an Exchange Offer, be
available for the exchange of Registrable Notes, and (iii) shall comply
as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the
SEC to be filed therewith or incorporated therein by reference, if
applicable; and use its best efforts to cause such Registration
Statement to become effective and remain effective (and, in the case of
a Shelf Registration Statement, available for use) in accordance with
Section 2 hereof; provided, however, that if (1) such filing is
pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the
Registrable Notes and each such Participating Broker-Dealer, as the
case may be, covered by such Registration Statement, their counsel and
the managing underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to
be filed. The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which
the Holders must be afforded an opportunity to review prior to the
filing of such document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented, if so determined by the
Company or requested by the SEC, by any required prospectus supplement
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement
during the Effectiveness Period or the Applicable Period, as the case
may be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Notes included in the Shelf Registration
Statement, at least three Business Days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Notes is being
filed and advise such Holder that the distribution of Registrable Notes
will be made in accordance with the method selected by the Majority
Holders; and (ii) furnish to each Holder of Registrable Notes included
in the Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Notes, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus,
and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable
Notes; and (iii) consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Registrable
Notes included in the Shelf Registration Statement in connection with
the offering and sale of the Registrable Notes covered by the
Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its best efforts
to register or qualify the Registrable Notes under all applicable state
securities or "blue sky" laws of such jurisdictions by the time the
applicable Registration Statement is declared effective by the SEC as
any Holder of Registrable Notes covered by a Registration Statement and
each underwriter of an underwritten offering of Registrable Notes shall
reasonably request in writing in advance of such date of effectiveness,
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such
Registrable Notes owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file
any general consent to service of process in any jurisdiction where
it would not otherwise be subject to such service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not then
so subject;
(e) (1) in the case of a Shelf Registration or (2) if
Participating Broker-Dealers from whom the Company has received prior
written notice that they will be utilizing the Prospectus contained in
the Exchange Offer Registration Statement as provided in Section 3(t)
hereof, are seeking to sell Exchange Notes and are required to deliver
Prospectuses, promptly notify each Holder of Registrable Notes, or such
Participating Broker-Dealers, as the case may be, their counsel and the
managing underwriters, if any, and promptly confirm such notice in
writing (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement or Prospectus or
for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the qualification of the Registrable Notes or
the Exchange Notes to be offered or sold by any Participating
Broker-Dealer in any jurisdiction described in paragraph 3(d) hereof or
the initiation of any proceedings for that purpose, (iv) in the case of
a Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Notes covered
thereby, the representations and warranties of the Company contained in
any purchase agreement, securities sales agreement or other similar
agreement, cease to be true and correct in all material respects, (v)
of the happening of any event or the failure of any event to occur or
the discovery of any facts or otherwise, during the Effectiveness
Period which makes any statement made in such Registration Statement or
the related Prospectus untrue in any material respect or which causes
such Registration Statement or Prospectus to omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) the
Company's reasonable determination that a post-effective amendment to
the Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Notes included within the coverage of such Shelf
Registration Statement, without charge, at least one conformed copy of
each Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold and not bearing any restrictive legends and in such
denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of
any sale of Registrable Notes pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best
efforts to prepare a supplement or post-effective amendment to such
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Notes, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such
an event, and each Holder hereby agrees to suspend the sale of Notes
pursuant to such Prospectus until the Company has amended or
supplemented such Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented prospectus to
such holder (or Participating Broker-Dealer, as the case may be) or the
Company has given notice that the sale of the Notes may be resumed, as
the case may be;
(j) in the case of a Shelf Registration, a reasonable time
prior to the filing of any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after the
initial filing of a Registration Statement, provide a reasonable
number of copies of such document to the Holders; and make such of the
representatives of the Company as shall be reasonably requested by the
Holders of Registrable Notes or an Initial Purchaser on behalf of such
Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes not later
than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Notes or the
Registrable Notes, as the case may be, in a form eligible for deposit
with the Depositary;
(l) cause the Indenture to be qualified under the Trust
Indenture Act of 1939 (the "TIA") in connection with the registration
of the Exchange Notes or Registrable Notes, as the case may be, and
effect such changes to such documents as may be required for them to be
so qualified in accordance with the terms of the TIA and execute, and
use its best efforts to cause the Trustee to execute, all documents as
may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such documents to
be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten offerings and take all such other appropriate actions as
are reasonably requested in order to expedite or facilitate the
registration or the disposition of such Registrable Notes, and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, if
requested by (x) the Initial Purchaser, in the case where the Initial
Purchaser holds Notes acquired by it as part of its initial allotment
and (y) other Holders of the Registrable Notes covered thereby: (i)
make such representations and warranties to Holders of such Registrable
Notes and the underwriters (if any), with respect to the business of
the Company and its subsidiaries as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings, and confirm
the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which may be in the form of a reliance
letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in principal amount
of the Registrable Notes being sold, addressed to each selling Holder
and the underwriters (if any) covering the matters customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such underwriters (it being agreed
that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested
by such underwriters in accordance with Statement on Auditing Standards
No. 72; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less
favorable to the underwriters and the Holders of Registrable Notes than
those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount or liquidation amount, as the case may be, of Registrable Notes
covered by such Registration Statement and the managing underwriters
and agents) customary for such agreements with respect to all parties
to be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders). The above shall be
done at each closing under such underwriting agreement, or as and to
the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section
2(b) or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, make reasonably
available for inspection by any selling Holder of such Registrable
Notes being sold, or each such Participating Broker-Dealer, as the case
may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all relevant information in each case reasonably
requested by any such Inspector in connection with such Registration
Statement; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of any
Participating Broker-Dealer by the Initial Purchaser and on behalf of
the other parties by one counsel designated by the Majority Holders on
behalf of such other parties as described in Section 2(c) hereof.
Records which the Company determines, in good faith, to be confidential
and any records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a material misstatement
or omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or is necessary in connection with any
action, suit or proceeding or (iii) the information in such Records has
been made generally available to the public. Each selling Holder of
such Registrable Notes and each such Participating Broker-Dealer will
be required to agree in writing that information obtained by it as a
result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally
available to the public. Each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records deemed
confidential;
(o) comply with all applicable rules and regulations of the
SEC so long as any provision of this Agreement shall be applicable and
make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to
underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall
cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by a
Trustee, obtain an opinion of counsel to the Company addressed to the
Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer substantially to the effect that
(i) the Company has duly authorized, executed and delivered the
Exchange Notes and (ii) the Exchange Notes constitute legal, valid and
binding obligations of the Company, enforceable against the Company, in
accordance with its respective terms (in each case, with customary
exceptions);
(q) if an Exchange Offer is to be consummated, upon delivery
of the Registrable Notes by Holders to the Company (or to such other
Person as directed by the Company), in exchange for the Exchange Notes,
the Company shall mark, or cause to be marked, on such Registrable
Notes delivered by such Holders that such Registrable Notes are being
cancelled in exchange for the Exchange Notes; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made
with the NASD;
(s) use its best efforts to take all other steps necessary to
effect the registration of the Registrable Notes covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to the Initial Purchaser or another
representative of the Participating Broker-Dealers, and which shall
contain a summary statement of the positions taken or policies made by
the staff of the SEC with respect to the potential "underwriter" status
of any broker-dealer (a "Participating Broker-Dealer") that holds
Registrable Notes acquired for its own account as a result of
market-making activities or other trading activities and that will be
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of Exchange Notes to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in
the reasonable judgment of the Initial Purchaser or such other
representative, represent the prevailing views of the staff of the
SEC, including a statement that any such broker-dealer who receives
Exchange Notes for Registrable Notes pursuant to the Exchange Offer may
be deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of
such Exchange Notes, (ii) furnish to each Participating Broker-Dealer
who has delivered to the Company the notice referred to in Section
3(e), without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (the Company hereby
consents to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto by
any Person subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Notes covered by
the Prospectus or any amendment or supplement thereto), (iii) use its
best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein
in order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply with
such requirements under the Securities Act and applicable rules and
regulations in order to resell the Exchange Notes; provided, however,
that such period shall not be required to exceed 180 days (or such
longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange offeree
in order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding
Registrable Notes acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of Exchange Notes
received in respect of such Registrable Notes pursuant to the
Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the Securities
Act; and
(B) in the case of any Exchange Offer Registration Statement,
the Company agrees to deliver to the Initial Purchaser or to another
representative of the Participating Broker-Dealers, if requested by
the Initial Purchaser or such other representative of the
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to the Initial
Purchaser or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 5(h) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of
debt securities and (iii) as well as upon the effectiveness of the
Exchange Offer Registration Statement, a comfort letter, in each
case, in customary form if permitted by Statement on Auditing Standards
No. 72.
The Company may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Company, such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Notes of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall have no obligation to register under the Securities Act the Registrable
Notes of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided
in Section 3(t) hereof are seeking to sell Exchange Notes and are required to
deliver Prospectuses, each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof or until it is advised in
writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense, as the case requires) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Notes or Exchange Notes,
as the case may be, current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Notes or Exchange Notes, as the case may be, pursuant to a Registration
Statement, the Company shall use its best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement to
the Registration Statement and shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days in the period from and including the date of the giving of
such notice to and including the date when the Company shall have made available
to the Holders (x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any Registra-
tion Statement, the Company agrees, jointly and severally, to indemnify and hold
harmless the Initial Purchaser, each Holder, each underwriter who participates
in an offering of the Registrable Notes, each Participating Broker-Dealer, each
agent, employee, officer and director of any of the foregoing parties and each
person that controls each of the foregoing parties within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, and agents,
employees, officers and directors of any such controlling person (each, a
"Section 4(a) Indemnified Party") from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including the reasonable fees and
expenses of counsel and other expenses in connection with investigating,
defending or settling any such action or claim) as they are incurred which arise
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement covering Registrable
Notes or Exchange Notes or any amendment or supplement thereto or arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except (i) the Company shall not be liable to any Section 4(a)
Indemnified Party in any such case insofar as such losses, claims, damages,
judgments, liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing by such Holder, Initial Purchaser,
Participating Broker-Dealer or any underwriter to the Company expressly for use
therein and (ii) the Company shall not be liable to any Section 4(a) Indemnified
Party under the indemnity agreement in this Section 4(a) with respect to any
untrue statement or alleged untrue statement or omission or alleged omission in
any preliminary Prospectus to the extent that any such loss, claim, damage,
judgment, liability or expense of any Holder, Initial Purchaser, Participating
Broker-Dealer, any underwriter or controlling person results from the fact that
such Holder, Initial Purchaser, any underwriter or Participating Broker-Dealer
sold Notes to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final Prospectus as then
amended or supplemented if the Company had previously furnished copies thereof
to such Holder, Initial Purchaser, underwriter or Participating Broker-Dealer
and the loss, claim, damage, judgment, liability or expense of such Holder,
Initial Purchaser, underwriter, Participating Broker-Dealer or controlling
person results from an untrue statement or omission of a material fact contained
in the preliminary Prospectus which was corrected in the final Prospectus. Any
amounts advanced by the Company to a Section 4(a) Indemnified Party as a result
of such losses shall be returned to the Company if it shall be finally
determined by a court in a judgment not subject to appeal or final review that
such indemnified party was not entitled to indemnification by the Company.
(b) If any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any Section
4(a) Indemnified Party with respect to which indemnity may be sought against the
Company pursuant to this Section 4, such Section 4(a) Indemnified Party shall
promptly notify the Company in writing, and the Company shall have the right to
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Section 4(a) Indemnified Party and payment of all fees and
expenses; provided, however, that the omission so to notify the Company shall
not relieve the Company from any liability that they may have to any Section
4(a) Indemnified Party (except to the extent that the Company is materially
prejudiced or otherwise forfeit substantive rights or defenses by reason of
such failure). A Section 4(a) Indemnified Party shall have the right to employ
separate counsel in any such action or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Section 4(a) Indemnified Party unless (i) the Company agrees
in writing to pay such fees and expenses, (ii) the Company has failed promptly
to assume the defense and employ counsel satisfactory to the Section 4(a)
Indemnified Party or (iii) the named parties to any such action or proceeding
(including any unpleaded parties) include the Section 4(a) Indemnified Party and
the Company and such Section 4(a) Indemnified Party shall have been advised in
writing by its counsel that representation of them and the Company by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation has been proposed) due to actual or
potential differing interests between them (in which case the Company shall not
have the right to assume the defense of such action on behalf of such Section
4(a) Indemnified Party). It is understood that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for such Section 4(a) Indemnified Party, and that all such fees and expenses
shall be reimbursed as they are incurred. The Company shall not be liable for
any settlement of any such action effected without the written consent of the
Company, but if settled with the written consent of the Company, or if there is
a final judgment with respect thereto, the Company agrees to indemnify and hold
harmless each Section 4(a) Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. The Company shall not,
without the prior written consent of each Section 4(a) Indemnified Party
affected thereby, effect any settlement of any pending or threatened proceeding
in which such Section 4(a) Indemnified Party has sought indemnity hereunder,
unless such settlement includes an unconditional release of such Section 4(a)
Indemnified Party from all liability arising out of such action, claim,
litigation or proceeding.
(c) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, any underwriter and the other selling Holders and each of
their respective directors, officers (including each officer of the Company who
signed the Registration Statement) and any person controlling the Company, any
underwriter or any other selling Holder within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (each such party, a "Section 4(c)
Indemnified Party") to the same extent as the foregoing indemnity from the
Company to any Section 4(a) Indemnified Party, but only with respect to
information furnished to the Company in writing by such Holder, expressly for
use in the Registration Statement, Prospectus (or any amendment or supplement
thereto), or any preliminary Prospectus, provided, however, that, in the case of
a Shelf Registration Statement, no such Holder shall be liable for any amount
hereunder in excess of the amount by which the net proceeds received by such
Holder from the sale of Registrable Notes pursuant to such Shelf Registration
Statement exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. In case any action shall be brought against any Section
4(c) Indemnified Party based on the Registration Statement, Prospectus (or any
amendment or supplement thereto), or any preliminary Prospectus and in respect
of which indemnification may be sought against each Holder pursuant to this
Section 4(c), each Holder shall have the rights and duties given to the Company
by Section 4(a) (except that if the Company shall have assumed the defense
thereof, each Holder may, but shall not be required to, employ separate counsel
therein and participate in the defense thereof and the fees and expenses of such
counsel shall be at the expense of the Holder) and the Section 4(c) Indemnified
Parties shall have the rights and duties given to the Section 4(a) Indemnified
Parties by Section 4(b).
(d) If the indemnification provided for in this Section 4 is unavailable to
any party entitled to indemnification pursuant to Section 4(a) or 4(c), then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, judgments, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the Company, on
the one hand, and each Holder, on the other, in connection with the statements
or omissions which resulted in such losses, claims, damages, judgments,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company, on the one hand, and each Holder, on the
other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or by each Holder, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company, and each Holder agree that it would not be just and
equitable if contribution pursuant to Section 4(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 4(d). No person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 4
are in addition to any liability that any indemnifying party may otherwise have
to any indemnified party.
5. MISCELLANEOUS.
(a) RULE 144 AND RULE 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will use its best efforts to
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder, or, if it ceases to be so required to file such reports, it
will, upon the request of any Holder of Registrable Notes (a) make publicly
available such information as is necessary to permit sales of its securities
pursuant to Rule 144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales of its securities pursuant
to Rule 144A under the Securities Act and it will take such further action as
any Holder of Registrable Notes may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, (ii) Rule 144A under the Securities Act, as such
rule may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Notes, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
(b) NO INCONSISTENT AGREEMENTS. The Company has not entered into, nor will
the Company on or after the date of this Agreement enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Notes in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding Registrable Notes
affected by such amendment, modification, supplement, waiver or departure;
provided that no amendment, modification or supplement or waiver or consent to
the departure with respect to the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder of Registrable Notes. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent of any Holder
of Registrable Notes, by written agreement signed by the Company and the Initial
Purchaser, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given by
written agreement signed by the Company and the Initial Purchaser to the extent
that any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to an Initial
Purchaser, such provision may be amended, modified or supplemented, and
waivers or consents to departures from such provisions may be given, by written
agreement signed by the Company and the Initial Purchaser.
(d) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 7(d),
which address initially is, with respect to the Initial Purchaser, the address
set forth in the Purchase Agreement; and (ii) if to the Company, initially at
the Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the respective successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Notes in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
(f) THIRD PARTY BENEFICIARY. The Initial Purchaser shall be a third party
beneficiary of the agreements made hereunder between the Company, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE
STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE
TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. 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 AGREEMENT.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever the consent
or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INTERPOOL, INC.
By:
Name:
Title:
Confirmed and accepted as of
the date first above
written:
SMITH BARNEY INC.
By: /s/ Mitchell I. Gordon
Name: Mitchell I. Gordon
Title: Managing Director
EXHIBIT 99.1
CONTACT: Raoul J. Witteveen
(212) 916-3261
FOR IMMEDIATE RELEASE
INTERPOOL ANNOUNCES SALE OF
7.35% Notes Due 2007
PRINCETON, NJ, July 25, 1997 - Interpool, Inc. (NYSE: IPX) announced today
that it has entered into an agreement to sell $150 million aggregate principal
amount of 7.35% Notes Due 2007. The transaction is expected to close on July 29,
1997. The Notes are being sold in a private transaction pursuant to Rule 144A
under the Securities Act of 1933.
Interpool expects to use the net proceeds from the issuance of the Notes,
estimated at approximately $147 million, to repay outstanding borrowings under
its revolving credit agreement and for other general corporate purposes,
including, but not limited to, the purchase of equipment, acquisitions and/or
working capital.
Interpool, originally founded in 1968, is one of the world's leading
lessors of cargo containers used in international trade and is the second
largest lessor of intermodal container chassis in the United States. The Company
leases its containers and chassis to over 200 customers, including nearly all of
the world's 20 largest international container shipping lines.
The Notes will not be registered under the Securities Act of 1933 and may
not be offered or sold in the United States or to any U.S. person absent
registration or an applicable exemption from registration requirements.
