SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
AMENDMENT NO. 2
TO
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
TRISM, Inc.
-----------------------------------------------------------
(Name of applicant)
4174 Jiles Road
Kennesaw, GA 30144
-----------------------------------------------------------
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
-------------- ------
12% Senior Subordinated Notes Due 2005 $30,000,000
---------------------------------------
Approximate date of proposed public offering: February 9, 2000.
James G. Overley
TRISM, Inc.
4174 Jiles Road
Kennesaw, GA 30144
(Name and address of agent for service)
with a copy to:
Allan R. Williams, Esq.
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
---------------------------------------
The applicant hereby amends this application for qualification on such date or
dates as may be necessary to delay its effectiveness until: (i) the 20th day
after the filing of a further amendment which specifically states that it shall
supersede this amendment, or (ii) such date as the Commission, acting pursuant
to Section 307(c) of the Trust Indenture Act of 1939, as amended (the "Act"),
may determine upon the written request of the applicant.
<PAGE>
GENERAL
1. General information.
(a) Form of organization: Corporation
(b) State or other sovereign power under the laws of which organized:
Delaware
2. Securities Act exemption applicable. TRISM, Inc. (the "Applicant" or the
"Company") relies upon the exemption from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") (and the equivalent
state securities or "blue sky" laws) provided by Section 3(a)7 of the Securities
Act and Section 1145(a)(1) of Title 11, United States Code, 11 U.S.C. ss.ss. 101
et seq. (the "Bankruptcy Code") as the basis for its claim that the registration
of the offer and sale, pursuant to the Plan (as defined below) of the 12% Senior
Subordinated Notes due 2005 (the "Notes") to be issued by the Company under an
indenture (the "Indenture") to be dated as of the effective date of the Plan
(the "Effective Date"), among the Company and U.S. Bank Trust National
Association, as trustee (to be named by amendment)(the "Trustee"), is not
required under the Securities Act. Section 3(a)7 of the Securities Act provides
that the provisions of the Securities Act do not apply to any certificates
issued by a receiver or by a trustee or debtor in possession in a case under
Title II of the Bankruptcy Code, with the approval of the court. Generally,
Section 1145(a)(1) of the Bankruptcy Code exempts the issuance of securities
from the requirements of the Securities Act and the equivalent state securities
and "blue sky" laws if the following conditions are satisfied: (1) the
securities are issued by a debtor, an affiliate participating in a joint plan of
reorganization with the debtor, or a successor of the debtor under a plan of
reorganization, (2) the recipients of the securities hold a claim against, an
interest in, or a claim for an administrative expense against, the debtor and
(3) the securities are issued entirely in exchange for the recipient's claim
against or interest in the debtor, or are issued "principally" in such exchange
and "partly" for cash or property.
On September 16, 1999, the Company, Trism Heavy Haul, Inc., Trism
Specialized Carriers, Inc., Trism Special Services, Inc., Trism Secured
Transportation, Inc., Diablo Systems, Inc., Trism Eastern, Inc., Tri-State Motor
Transit Co., Trism Logistics, Inc. and Trism Equipment, Inc. filed petitions for
relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy
Court for the District Court of Delaware. The Company has continued to operate
its business and manage its properties as a debtor-in-possession pursuant to
Section 1107 and 1108 of the Bankruptcy Code.
The Company proposes to issue the Notes pursuant to its Joint Plan of
Reorganization dated October 25, 1999 ("Plan"). The Second Amended Disclosure
Statement dated October 25, 1999 was distributed to holders of claims against or
interests in the Company for the purpose of soliciting their votes for the
acceptance or rejection of the Plan. The Disclosure Statement was approved by
the Bankruptcy Court on October 25, 1999. The Plan was confirmed at a hearing
held on December 9, 1999.
2
<PAGE>
AFFILIATIONS
3. Affiliates. The following diagram sets forth the relationship among the
Company and all of its affiliates, including their respective percentages of
voting securities, as of November 30, 1999.
TRISM, Inc. (100%)
|-------Trism Heavy Haul, Inc. (100%)
| |------E.L. Powell & Sons Trucking Co., Inc.
| |------Trism Specialized Carriers, Inc. (100%)
| |------Trism Special Services, Inc.
|
|-----------------Trism Secured Transportation, Inc. (100%)
| |-----Diablo Systems, Incorporated
| |-----Trism Eastern, Inc.
| |-----Tri-State Motor Transit Co. (100%)
| |------Aero Body and Truck Equipment, Inc.
|
|-------Trism Transport, Inc. (100%)
| |------Trism Transport Services, Inc.
|
|-------Trism Logistics, Inc.
|
|-------Trism Equipment, Inc.
Certain directors and executive officers of the Company identified in Item
4 below may be deemed to be affiliates of the Company.
As of the Effective Date, Merrill Lynch Asset Management, L.P. and certain
funds identified in Item 5 below may be deemed affiliates of the Company.
3
<PAGE>
MANAGEMENT AND CONTROL
4. Directors and executive officers. The following table sets forth the
name and complete mailing addresses of all directors and executive officers of
the Applicant as of November 30, 1999.
NAME AND ADDRESS* OFFICE
Edward L. McCormick President, Chief Executive Officer and
Director
J. Barry Moody Executive Vice President, Operations
Glenn Kavanagh Senior Vice President, Sales and Marketing
Ralph S. Nelson Senior Vice President,
General Counsel and Secretary
James G. Overley Senior Vice President,
Chief Financial Officer and Treasurer
Walter E. Prince Senior Vice President,
Maintenance and Equipment
E. Virgil Conway Director
Julian H. Gingold Director
James F. Higgins Director
William Legg Director
John L. Ray Director
- ---------------
* The address of each director and executive officer is c/o TRISM, Inc., 4174
Jiles Road, Kennesaw, GA 30144.
Upon the Effective Date, all of the directors of the Company, except Edward
L. McCormick, will resign and new directors will be appointed. The new directors
will be Thomas P. Krasner, Dana L. Manner, John S. Albanese and Randall B.
Kominsky. The address of each new director is c/o TRISM, Inc., 4174 Jiles Road,
Kennesaw, GA 30144.
The executive officers of the Company will remain the same immediately
following the Effective Date.
5. Principal owners of voting securities. The following table, as of
November 30, 1999, sets forth the security ownership of each person who was
known by the Company to beneficially own more than 10 percent of the voting
securities of the Applicant.
PERCENTAGE
OF VOTING
NAME AND COMPLETE AMOUNT SECURITIES
MAILING ADDRESS TITLE OF CLASS OWNED OWNED OWNED
----------------- -------------------- ------- ----------
James F. Higgins Common Stock 584,324 10.2
c/o TRISM, Inc.
4174 Jiles Road
Kennesaw, GA 30144
4
<PAGE>
Set forth below is the security ownership of each person that is expected
to beneficially own more than 10 percent of the voting securities of the
Applicant after the Effective date.
PERCENTAGE
OF VOTING
NAME AND COMPLETE AMOUNT SECURITIES
MAILING ADDRESS TITLE OF CLASS OWNED OWNED OWNED
----------------- -------------------- --------- ----------
Merrill Lynch Asset(1) Common Stock 564,635(2) 29.7(2)
Management, L.P.
800 Scudders Mill Road
Plainsboro, NJ 08536
(1) Merrill Lynch Asset Management, L.P. acts as investment advisor for
Corporate High Yield Fund, Inc., Corporate High Yield Fund II, Inc.,
Corporate High Yield Fund III, Inc., Debt Strategies Fund, Inc.,
Merrill Lynch Debit Strategies Portfolio, Inc., Senior High Income
Portfolio, Inc. and Merrill Lynch Phoenix Fund, Inc. and may be deemed
the beneficial owner of the securities held by each of the foregoing.
(2) Approximate.
UNDERWRITERS
6. Underwriters.
(a) Persons acting as underwriters within the last three years: Not
applicable
(b) Proposed principal underwriter of securities proposed to be
offered: Not applicable
CAPITAL SECURITIES
7. Capitalization. (a) Pursuant to the Plan, the Company's Certificate of
Incorporation will be amended to provide for, among other things, the
authorization of 5,000,000 shares of new Common Stock, $.01 par value (the "New
Common Stock").
The following table sets forth, as of November 30, 1999, certain
information as to each authorized class of securities of the Applicant:
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
-------------- ----------------- ------------------
Common Stock 10,000,000 5,702,137
5
<PAGE>
The following table sets forth, as of the Effective Date, certain
information as to each authorized class of securities of the Applicant:
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
---------------- ----------------- ------------------
New Common Stock 5,000,000 2,000,000
(b) Each holder of shares of Common Stock is entitled to one vote for each
outstanding share of Common Stock owned by him on each matter properly submitted
to the stockholders for their vote. The Common Stock will be canceled on the
Effective Date. Each holder of shares of New Common Stock will be entitled to
one vote for each outstanding share of New Common Stock owned by him on each
matter properly submitted to the stockholders for their vote.
INDENTURE SECURITIES
8. Analysis of indenture provisions.
The following analysis of the indenture provisions is required under
Section 305(a)(2) of the Trust Indenture Act of 1939, as amended.
Events of Default; Withholding of Notice of Default
---------------------------------------------------
(a) Pursuant to the Indenture, an "Event of Default" will occur if:
(1) the Company defaults in the payment of interest on any Notes 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 (or premium, if
any, on) any Note when the same becomes due and payable, at maturity, upon
acceleration, redemption or otherwise (including the failure to purchase (or
offer to purchase) Notes tendered pursuant to the terms of the Indenture);
(3) the Company or any guarantor under the Indenture fails to comply with
any other agreement or covenant contained in the Notes, the Indenture or the
registration rights agreement, and the default continues for the period and
after the notice specified in the Indenture;
(4) there shall be a default under any bond, debenture or other evidence of
indebtedness of the Company or any guarantor under the Indenture having an
aggregate amount in excess of $3,000,000, or under any mortgage, security
agreement, indenture or other instrument under which there may be issued or by
which there may be secured or evidenced any such indebtedness, if such default
either (A) results from the failure to pay principal or interest on any
indebtedness or (B) relates to an obligation other than the obligation to pay
principal or interest on any indebtedness and results in the holder or holders
of such indebtedness causing such indebtedness to become due prior to its stated
maturity;
(5) any guarantee under the Indenture required to be in full force and
effect by the terms of the Indenture ceases to be in full force and effect or is
declared null and void or otherwise not enforceable against any guarantor under
the Indenture in accordance with its terms, or any of the guarantors under the
Indenture repudiates its obligations under its guarantee or denies that it has
any further liability under the guarantee or gives notice to such effect (other
than by reason of the termination of the Indenture or the release of any such
guarantor), or any guarantor under the Indenture repudiates its obligations
under its guarantee of the Notes or if a final judicial determination is made
that such guarantee is not enforceable against any guarantor in accordance with
its terms;
(6) the Company or any guarantor under the Indenture pursuant to or within
the meaning of any bankruptcy law:
6
<PAGE>
(a) admits in writing its inability to pay its debts generally as they
become due;
(b) commences a voluntary case or proceeding;
(c) consents to the entry of a judgment, decree or order for relief against
it in an involuntary case or proceeding;
(d) consents to the appointment of a custodian of it or for all or
substantially all of its property;
(e) consents to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it;
(f) makes a general assignment for the benefit of its creditors; or
(g) takes any corporate action to authorize or effect any of the foregoing;
(7) a court of competent jurisdiction enters a judgment, decree or order
under any bankruptcy law that is for relief against the Company or any guarantor
under the Indenture, in an involuntary case or proceeding which shall (A)
approve a petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company or any guarantor under the Indenture, (B)
appoint a custodian of the Company or any guarantor under the Indenture, or for
substantially all of its property, or (C) order the winding-up or liquidation of
its affairs, and in each case the judgment, order or decree remains unstayed and
in effect for 60 days;
(8) any warrant of attachment is issued against any property of the Company
or any guarantor under the Indenture having a value of at least $3 million,
which warrant is not released, stayed or bonded against within 60 days after
service of process with respect thereto;
(9) any final judgments or orders not covered by insurance (which insurance
has been issued by a financially sound insurer that is not an affiliate of the
Company and that has not disclaimed or threatened to disclaim coverage) for the
payment in money which individually or in an aggregate amount at any one time
exceeds, $3 million shall be rendered against the Company, any guarantor under
or any of their respective subsidiaries by a court of competent jurisdiction
shall remain unstayed, undischarged or unbonded for a period of 60 days after
judgement becomes final and nonappealable; or
(10) there shall be any failure to procure and maintain property and
liability insurance continuing, in the case of failure to maintain such
insurance, until the earlier of (A) 30 days after notice to the Company or any
of its subsidiaries or the trustee of the lapse or cancellation of such
insurance, and (B) the date such lapse or cancellation is effective as to the
trustee.
If a default or event of default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each holder of Notes notice of
the uncured default or event of default within 90 days after such default or
event of default occurs. Except in the case of a default or an event of default
in payment of principal of, or interest on, any Note, including the failure to
make a net proceeds purchase, the Trustee may withhold the notice if and so long
as its Board of Directors, the executive committee of its Board of Directors or
a committee of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the holders.
Authentication and Delivery of the Notes; Application of the Proceeds
---------------------------------------------------------------------
Pursuant to the Indenture, the Trustee shall authenticate the Notes for
original issue in the aggregate principal amount of up to $30,000,000, upon a
written order of the Company in the form of an officers' certificate. The
officers' certificate shall specify the amount of Notes to be authenticated and
the date on which the Notes are to be authenticated.
There will be no proceeds from the issuance of the Notes.
Release or Release and Substitution of Property subject to the Lien of the
--------------------------------------------------------------------------
Indenture
- ---------
The Notes are not secured by any assets of the Company.
7
<PAGE>
Satisfaction and Discharge of the Indenture
-------------------------------------------
Pursuant to the Indenture, the Company at its option, subject to the
satisfaction of the conditions set forth below, will be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance").
In order to exercise Legal Defeasance:
(i) the Company must irrevocably deposit with the Trustee or paying
agent, in trust, for the benefit of the holders, U.S. legal tender, U.S.
government obligations which, through the scheduled payment of principal
and interest in respect as will be sufficient to pay the principal of,
premium, if any, and interest on the Notes on the stated date for payment
thereof or on the applicable redemption date, as the case may be;
(ii)the Company shall have delivered to the Trustee an opinion of
counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
of the Indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that the holders of the Notes will
not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such Legal Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same time as
would have been the case if such Legal Defeasance had not occurred.
(iii) no default or event of default shall have occurred and be
continuing on the date of such deposit (other than a default or event of
default resulting from the incurrence of Indebtedness) all or a portion of
the proceeds of which will be used to defease the Notes.
(iv) such Legal Defeasance shall not result in a breach or violation
of, or constitute a default under, the Indenture, or a default under any
other material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound;
(v) the Company shall have delivered to the Trustee an opinion of
counsel to the effect that the trust funds will not be subject to any
rights of holders of indebtedness which is senior to the Notes, and to the
effect that after the 91st day following the deposit, such trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(vi) the Company shall have delivered to the Trustee an officers'
certificate stating that the deposit was not made by the Company with the
intent of preferring the holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding an other
creditors of the Company;
(vii) the Company shall have delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance have been
complied with; and
(viii) such Legal Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act of 1939,
as amended.
Evidence to be Furnished to Trustee as to Compliance with Conditions and
------------------------------------------------------------------------
Covenants
- ---------
The Company and each guarantor under the Indenture shall deliver to the
Trustee within 45 days after the end of each of the first three fiscal quarters
of each fiscal year of the Company, and within 120 days after the end of the
last fiscal quarter of each such fiscal year, an officers' certificate, stating
that a review of its activities and the activities of its subsidiaries during
the preceding fiscal quarter (or, in the case of the last fiscal quarter, the
preceding fiscal year) with a view to determining whether each has kept,
observed, performed and fulfilled its obligations under the Indenture and
further stating, as to each such officer signing such certificate, that to the
best of his knowledge the Company and its respective subsidiaries during such
preceding fiscal quarter (or year, as appropriate) has kept, observed, performed
and fulfilled each and every such covenant and that no default or event of
default under the Indenture or, if such signers do know of such an occurrence,
the certificate shall describe the occurrence and its status with particularity.
8
<PAGE>
The Company shall and shall cause each of its subsidiaries to deliver to
the Trustee, forthwith upon becoming aware, and in any event within 5 days after
the occurrence, of any default or event of default under the Indenture.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file with
the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13 or 15(d) or any successor provision thereto if the Company were
subject thereto, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required to file them. The Company shall also (whether or not it is
required to file reports with the Commission), within 30 days of each Required
Filing Date, file with the Trustee, copies of the annual reports, quarterly
reports and other documents (without exhibits) which the Company has filed or
would have filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, any successor provisions thereto or this covenant. The Trustee
shall furnish copies of any such reports and other documents to any holder upon
such holder's written request. The Company shall not be required to file any
report with the Commission if the Commission does not permit such filing. The
Company shall also comply with the other provisions of Section 314(a) of the
Trust Indenture Act of 1939, as amended.
9. Other obligors. Set forth below is the name and complete mailing address
of each person, other than the Applicant, who is an obligor upon the indenture
securities.
(a) Trism Heavy Haul, Inc.
(b) E.L. Powell & Sons Trucking Co., Inc.
(c) Trism Specialized Carriers, Inc.
(d) Trism Special Services, Inc.
(e) Trism Secured Transportation, Inc.
(f) Diablo Systems, Inc.
(g) Trism Eastern, Inc.
(h) Tri-State Motor Transit Co.
(i) Aero Body and Truck Equipment, Inc.
(j) Trism Transport, Inc.
(k) Trism Transport Services, Inc.
(l) TRISM Logistics, Inc.
(m) TRISM Equipment, Inc.
The address of each of the obligors is c/o TRISM, Inc., 4174 Jiles Road,
Kennesaw, GA 30144.
CONTENTS OF APPLICATION FOR QUALIFICATION
This application for qualification comprises:
(a) Pages numbered 1 to 10, consecutively.
(b) The statement of eligibility and qualification of the trustee on Form
T-1 under the indenture to be qualified, which statement will be filed by
amendment.
9
<PAGE>
(c) The following exhibits in addition to those filed as a part of the
statement of eligibility and qualification of each trustee.
Exhibit T3A-1 Certificate of Incorporation, as amended through January
21, 1993 (Incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration No.
33-71222), initially filed with the Securities and
Exchange Commission on November 4, 1993, as amended).
Exhibit T3B-1 By-laws of TRISM, Inc. (Incorporated by reference to the
Company's Registration Statement on Form S-1
(Registration No. 33-71222), initially filed with the
Securities and Exchange Commission on November 4, 1993,
as amended)
Exhibit T3C-1 Indenture to be dated as of the Effective Date between
TRISM, Inc. and the Guarantors named therein and U.S.
Bank Trust National Association, as Trustee.
Exhibit T3D Not applicable.
Exhibit T3E-1* Second Amended Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code dated October 25,
1999.
Exhibit T3F-1* Cross reference sheet showing the location in the
Indenture of the provisions inserted therein pursuant to
Sections 310 through 318(a), inclusive, of the Trust
Indenture Act of 1939, as amended.
Exhibit T3G-1 Trustee's Statement of Eligibility on Form T-1 of the
Trust Indenture Act of 1939, as amended.
- ------------
* Previously filed.
10
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, TRISM, Inc., a corporation organized and existing under the laws of
Delaware, has duly caused this application to be signed on its behalf by the
undersigned, thereunto duly authorized, and its seal to be hereunto affixed and
attested, all in the city of Kennesaw, and State of Georgia, on the 3rd day of
February, 2000.
(SEAL) TRISM, INC.
By: /s/ Ralph S. Nelson
---------------------------------
Ralph S. Nelson
Senior Vice President and General
Counsel
Attest:
By: /s/ James G. Overley
-------------------------
James G. Overley
Senior Vice President and
Chief Financial Officer
11
<PAGE>
Exhibit T3G-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer Identification No.)
U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
U.S. BANK TRUST NATIONAL ASSOCIATION
100 WALL STREET, SUITE 1600
NEW YORK, NEW YORK 10005
(212) 361-2524
(Name, address and telephone number of agent for service)
TRISM, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-3491658
(State of Incorporation) (I.R.S. Employer Identification No.)
4174 Jiles Road
Kennesaw, GA 30144
(Address of Principal Executive Offices) (Zip Code)
12% SENIOR SUBORDINATED NOTES DUE 2005
(Title of the Indenture Securities)
<PAGE>
GENERAL
1. General Information Furnish the following information as to the Trustee.
-------------------
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
------------------------------------------
underwriter for the obligor is an affiliate of the Trustee, describe each
such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which the
Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement
----------------
of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust powers
(included in Exhibits 1 and 2; no separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
<PAGE>
6. The consents of the Trustee required by Section 321(b) of the Act.
7. Copy of the latest report of condition of the Trustee published pursuant
to law or the requirements of its supervising or examining authority is
incorporated by reference to Registration Number 333-70709.
- ------------
* Incorporated by reference to Registration Number 22-27000.
3
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, U.S. Bank Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the20th day of December,
1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Laurie Howard
----------------------
Laurie Howard
Vice President
/s/ Harry H. Hall, Jr.
- ------------------------
Harry H. Hall, Jr.
Assistant Secretary
4
<PAGE>
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, U.S. BANK TRUST NATIONAL ASSOCIATION hereby consents that reports
of examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: December 20, 1999
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Laurie Howard
----------------------
Laurie Howard
Vice President
5
DRAFT
TRISM, INC., AS ISSUER
AND
THE GUARANTORS
AND
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
INDENTURE
DATED AS OF FEBRUARY 9, 2000
---------------------
$30,000,000
12% SENIOR SUBORDINATED NOTES DUE 2005
<PAGE>
CROSS-REFERENCE TABLE
TIA Section Indenture Section
310 (a) (1)..............................................................7.10
(a) (2)..................................................................7.10
(a) (3)..................................................................N.A.
(a) (4)..................................................................N.A.
(a) (5)..................................................................7.10
(b).........................................................7.08; 7.10; 13.02
(c)......................................................................N.A.
311 (a)..................................................................7.11
(b)......................................................................7.11
(c)......................................................................N.A.
312 (a)..................................................................2.05
(b).....................................................................13.03
(c).....................................................................13.03
313 (a)..................................................................7.06
(b) (1)..................................................................N.A.
(b) (2)............................................................7.06; 7.07
(c)...............................................................7.06; 13.02
(d)......................................................................7.06
314 (a).....................................................4.08; 4.10; 13.02
(b).......................................................................N/A
(c) (1)...........................................................7.02; 13.04
(c) (2)...........................................................7.02; 13.04
(c) (3)..................................................................N.A.
(d)......................................................................N.A.
(e).....................................................................13.05
(f)......................................................................N.A.
315 (a)...............................................................7.01(b)
(b)......................................................................7.05
(c)...................................................................7.01(a)
(d)..........................................................7.01(c); 7.01(d)
(e)......................................................................6.11
316(a) (last sentence)...................................................2.09
(a) (1) (A)..............................................................6.05
(a) (1) (B)..............................................................6.04
(a) (2)..................................................................N.A.
(b)......................................................................6.07
(c).....................................................................13.06
317 (a) (1)..............................................................6.08
(a) (2)..................................................................6.09
(b)......................................................................2.04
318 (a).................................................................13.01
(c).....................................................................13.01
__________________________
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE....................1
Section 1.01 Definitions...................................................1
Section 1.02 Incorporation by Reference of TIA............................17
Section 1.03 Rules of Construction........................................18
ARTICLE TWO THE SENIOR SUBORDINATED NOTES................................18
Section 2.01 Form and Dating..............................................18
Section 2.02 Execution and Authentication.................................19
Section 2.03 Registrar and Paying Agent...................................19
Section 2.04 Paying Agent to Hold Assets in Trust.........................20
Section 2.05 Securityholder Lists.........................................20
Section 2.06 Transfer and Exchange........................................21
Section 2.07 Replacement Senior Subordinated Notes........................21
Section 2.08 Outstanding Senior Subordinated Notes........................21
Section 2.09 Treasury Senior Subordinated Notes...........................22
Section 2.10 Temporary Senior Subordinated Notes..........................22
Section 2.11 Cancellation.................................................22
Section 2.12 Defaulted Interest...........................................23
Section 2.13 CUSIP Number.................................................23
ARTICLE THREE REDEMPTION...................................................23
Section 3.01 Notices to Trustee...........................................23
Section 3.02 Selection of Senior Subordinated Notes to Be Redeemed........24
Section 3.03 Notice of Redemption.........................................24
Section 3.04 Effect of Notice of Redemption...............................25
Section 3.05 Deposit of Redemption Price..................................25
Section 3.06 Senior Subordinated Notes Redeemed in Part...................25
Section 3.07 Optional Redemption..........................................26
Section 3.08 Mandatory Purchase Upon Asset Sale...........................26
ARTICLE FOUR COVENANTS....................................................26
Section 4.01 Payment of Senior Subordinated Notes.........................26
Section 4.02 Maintenance of Office or Agency..............................26
Section 4.03 Limitation on Restricted Payments............................26
Section 4.04 Minimum Net Worth............................................27
Section 4.05 Corporate Existence..........................................27
Section 4.06 Payment of Taxes and Other Claims............................27
Section 4.07 Maintenance of Properties and Insurance......................28
Section 4.08 Compliance Certificate; Notice of Default....................28
Section 4.09 Compliance with Laws.........................................29
Section 4.10 Commission Reports...........................................29
ii
<PAGE>
TABLE OF CONTENTS
(Continued)
PAGE
Section 4.11 Waiver of Stay, Extension or Usury Laws......................30
Section 4.12 Limitation on Transactions with Affiliates...................30
Section 4.13 Limitation on Incurrences of Additional Indebtedness.........31
Section 4.14 Limitation on Payment Restrictions Affecting Subsidiaries....32
Section 4.15 Limitation on Liens..........................................32
Section 4.16 Restrictions on Sale and Ownership of Subsidiaries...........32
Section 4.17 Payments for Consent.........................................33
Section 4.18 Limitation on Asset Sales....................................33
Section 4.19 Guarantees by Subsidiaries...................................35
Section 4.20 Subsidiaries.................................................35
Section 4.21 Prohibition on Company and Guarantors Becoming an
Investment Company...........................................35
Section 4.22 Maintenance Capital Expenditures.............................35
Section 4.23 Line of Business.............................................36
Section 4.24 Limitation on Issuance of Other Subordinated Indebtedness
Senior to the Senior Subordinated Notes.....................36
Section 4.25 Limitation of Guarantees by Subsidiaries.....................36
ARTICLE FIVE SUCCESSOR CORPORATION........................................37
Section 5.01 Limitation on Merger, Etc....................................37
Section 5.02 Successor Corporation Substituted............................39
ARTICLE SIX DEFAULT AND REMEDIES.........................................39
Section 6.01 Events of Default............................................39
Section 6.02 Acceleration.................................................41
Section 6.03 Other Remedies...............................................42
Section 6.04 Waiver of Past Defaults......................................42
Section 6.05 Control by Majority..........................................42
Section 6.06 Limitation on Suits..........................................43
Section 6.07 Rights of Holders to Receive Payment.........................43
Section 6.08 Collection Suit by Trustee...................................43
Section 6.09 Trustee May File Proofs of Claim.............................44
Section 6.10 Priorities...................................................44
Section 6.11 Undertaking for Costs........................................45
Section 6.12 Event of Default from Willful Action.........................45
Section 6.13 Rights and Remedies Cumulative...............................45
Section 6.14 Delay or Omission Not Waiver.................................45
ARTICLE SEVEN TRUSTEE......................................................45
Section 7.01 Duties of Trustee............................................46
Section 7.02 Rights of Trustee............................................47
Section 7.03 Individual Rights of Trustee.................................48
Section 7.04 Trustee's Disclaimer.........................................48
iii
<PAGE>
TABLE OF CONTENTS
(Continued)
PAGE
Section 7.05 Notice of Default............................................48
Section 7.06 Reports by Trustee to Holders................................48
Section 7.07 Compensation and Indemnity...................................48
Section 7.08 Replacement of Trustee.......................................49
Section 7.09 Successor Trustee by Merger, Etc.............................50
Section 7.10 Eligibility; Disqualification................................50
Section 7.11 Preferential Collection of Claims Against the Company........50
ARTICLE EIGHT SUBORDINATION................................................51
Section 8.01 Senior Subordinated Notes Subordinate to
Senior Indebtedness..........................................51
Section 8.02 Payment Over of Proceeds Upon Dissolution, Etc...............51
Section 8.03 Suspension of Payment When Senior Indebtedness in Default....52
Section 8.04 Payment Permitted if No Default..............................53
Section 8.05 Subrogation to Rights of Holders of Senior Indebtedness......53
Section 8.06 Provisions Solely to Define Relative Rights..................54
Section 8.07 Trustee to Effectuate Subordination Provisions...............54
Section 8.08 No Waiver of Subordination Provisions........................54
Section 8.09 Notice to Trustee............................................55
Section 8.10 Reliance on Judicial Order or Certificate of
Liquidating Agent............................................56
Section 8.11 Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.............................56
Section 8.12 Article Applicable to Paying Agents..........................56
Section 8.13 No Suspension of Remedies....................................57
Section 8.14 Trustee's Relation to Senior Indebtedness....................57
ARTICLE NINE LEGAL DEFEASANCE AND COVENANT DEFEASANCE.....................57
Section 9.01 Option to Effect Legal Defeasance or Covenant Defeasance.....57
Section 9.02 Legal Defeasance and Discharge...............................57
Section 9.03 Covenant Defeasance..........................................58
Section 9.04 Conditions to Legal or Covenant Defeasance...................58
Section 9.05 Deposited U.S. Legal Tender and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.....................................60
Section 9.06 Repayment to the Company.....................................60
Section 9.07 Reinstatement................................................61
ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVER...........................61
Section 10.01 Without Consent of Holders of Senior Subordinated Notes......61
Section 10.02 With Consent of Holders of Senior Subordinated Notes.........62
Section 10.03 Effect of Supplemental Indentures............................64
Section 10.04 Compliance with TIA..........................................64
Section 10.05 Revocation and Effect of Consents............................64
Section 10.06 Notation on or Exchange of Senior Subordinated Notes.........65
Section 10.07 Trustee to Sign Supplemental Indentures......................65
iv
<PAGE>
TABLE OF CONTENTS
(Continued)
PAGE
ARTICLE ELEVEN MEETINGS OF SECURITYHOLDERS..................................66
Section 11.01 Purposes for Which Meetings May Be Called....................66
Section 11.02 Manner of Calling Meetings...................................67
Section 11.03 Call of Meetings by the Company or Holders...................67
Section 11.04 Who May Attend and Vote at Meetings..........................68
Section 11.05 Regulations May Be Made by Trustee; Conduct of the Meeting;
Voting Rights; Adjournment...................................68
Section 11.06 Voting at the Meeting and Record to Be Kept..................69
Section 11.07 Exercise of Rights of Trustee or Securityholders
May Not Be Hindered or Delayed by Call of Meeting.........69
ARTICLE TWELVE GUARANTEE OF SENIOR SUBORDINATED NOTES.......................69
Section 12.01 Unconditional Guarantee......................................69
Section 12.02 Seniority of Guarantee.......................................70
Section 12.03 Severability.................................................71
Section 12.04 Release of a Guarantor.......................................71
Section 12.05 Limitation of Guarantor's Liability..........................71
Section 12.06 Guarantors May Consolidate, etc., on Certain Terms...........71
Section 12.07 Contribution.................................................72
Section 12.08 Waiver of Subrogation........................................72
Section 12.09 Subordination of Guarantee...................................73
Section 12.10 Execution of Guarantee.......................................73
Section 12.11 Guarantee Unconditional, Etc.................................74
Section 12.12 Additional Guarantors........................................74
Section 12.13 Waiver of Stay, Extension or Usury Laws......................75
ARTICLE THIRTEEN MISCELLANEOUS................................................75
Section 13.01 TIA Controls.................................................75
Section 13.02 Notices......................................................75
Section 13.03 Communications by Holders with Other Holders.................76
Section 13.04 Certificate and Opinion as to Conditions Precedent...........76
Section 13.05 Statements Required in a Certificate or Opinion..............77
Section 13.06 Acts of Holders..............................................78
Section 13.07 Rules by Trustee and Agents..................................79
Section 13.08 Legal Holidays...............................................79
Section 13.09 Governing Law................................................79
Section 13.10 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities...................................................79
Section 13.11 No Adverse Interpretation of Other Agreements................80
Section 13.12 No Recourse Against Others...................................80
Section 13.13 Successors...................................................81
Section 13.14 Counterpart Originals........................................81
Section 13.15 Severability.................................................81
v
<PAGE>
TABLE OF CONTENTS
(Continued)
PAGE
Section 13.16 Table of Contents, Headings, Etc.............................81
EXHIBITS AND SCHEDULES
Exhibit A - Form of Senior Subordinated Note...............................A-1
Exhibit B - Form of Registration Rights Agreement..........................B-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
vi
<PAGE>
INDENTURE dated as of February 4, 2000 among TRISM, INC., a Delaware
corporation (the "Company"), the GUARANTORS (as defined below), and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of 12% Senior
Subordinated Notes Due 2005 in the form attached hereto as EXHIBIT A, and, to
provide therefor, the Company has duly authorized the execution and delivery of
this Indenture. The Senior Subordinated Notes will be jointly and severally
guaranteed, on an unconditional unsecured basis as provided herein, by the
Guarantors (as defined below). All things necessary to make the Senior
Subordinated Notes, when duly issued and executed by the Company and the
Guarantors, and authenticated and delivered hereunder, the valid obligations of
the Company and the Guarantors and to make this Indenture a valid and binding
agreement of the Company and the Guarantors, have been done.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's 12%
Senior Subordinated Notes due 2005:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
For all purposes of this Indenture, except as otherwise provided or
unless the context otherwise requires:
"ADJUSTED NET ASSETS" of a Person at any date shall mean the lesser of
the amount by which (i) the fair value of the property of such Person exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and calculated in accordance with the
definition of Indebtedness), but excluding liabilities under the Guarantee, of
such Person at such date and (ii) the present fair salable value of the assets
of such Person at such date exceeds the amount that will be required to pay the
probable liability of such Person on its debts (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date and after
giving effect to any collection from any Subsidiary of such Person in respect of
the obligations of such Subsidiary under the Guarantee), excluding debt in
respect of the Guarantee, as they become absolute and matured.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of Section 4.12 hereof, the term "Affiliate" shall
include any Person who, as a result of any transaction described therein, would
become an Affiliate.
<PAGE>
"AFFILIATE TRANSACTION" shall have the meaning provided in Section
4.12.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"ASSET SALE" means the Disposition by the Company or any Subsidiary to
any Person other than the Company or a Guarantor, in one transaction, or a
series of related transactions, of (i) any Capital Stock of any Subsidiary
(except for directors' qualifying shares or certain minority interests sold to
other Persons solely due to local law requirements that there be more than one
stockholder, but which are not in excess of what is required for such purpose),
or (ii) any other Property or assets of the Company or any Subsidiary, other
than (A) sales of obsolete or worn out equipment in the ordinary course of
business or other assets that, in the Company's reasonable judgment, are no
longer used or useful in the conduct of the business of the Company and its
Subsidiaries, (B) any sale or lease of Property or other assets entered into by
the Company or any Subsidiary in the ordinary course of business, other than any
Bargain Purchase Contract, (C) a payment permitted under Section 4.14, and (D) a
consolidation or merger or any transfer of assets (including pursuant to a Plan
of Liquidation) in compliance with the provision herein described in Article
Five. An Asset Sale shall include the requisition of title to, seizure of or
forfeiture of any Property or assets, or any actual or constructive total loss
or an agreed or compromised total loss of any Property or assets.
Notwithstanding the foregoing, a Disposition by the Company or any Subsidiary to
any Person other than the Company or a Guarantor, in one transaction, or a
series of related transactions, of any tractors, trailers, vans or other
equipment used by the Company or any of its Subsidiaries in the operation of the
TRISM Business shall not be deemed to be an Asset Sale unless and until the Net
Cash Proceeds so received by the Company or such Subsidiary have not been
applied by the Company or such Subsidiary, within one year of the date of such
Disposition, toward the acquisition of tractors, trailers, vans or other
equipment that replace the properties that were the subject of such Disposition.
"ASSET SALE CLOSING DATE" shall have the meaning provided in Section
4.18.
"ATTRIBUTABLE INDEBTEDNESS" in respect of a Sale and Lease-Back
Transaction means, at any date of determination, the present value (discounted
at the interest rate borne by the Senior Subordinated Notes, compounded
annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease (or to the first date on which the lessee is
permitted to terminate such lease without the payment of a penalty) included in
such Sale and Lease-Back Transaction (including any period for which such lease
has been extended).
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"BARGAIN PURCHASE CONTRACT" means a lease that provides for
acquisition of the Property subject thereto by the other party to such agreement
during or at the end of the term thereof for less than the Fair Market Value
thereof at the time such right to acquire such Property is granted.
2
<PAGE>
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors (or Persons serving an analogous function) of such Person or any
committee of the Board of Directors (or Persons serving an analogous function)
of such Person duly authorized, with respect to any particular matter, to
exercise the power of the Board of Directors (or such analogous Persons) of such
Person.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY" means a day that is not a Saturday, Sunday or a day on
which banking institutions in New York City are not required to be open.
"CAPITAL EXPENDITURE" means any expenditure that is properly
classified as a capital expenditure in accordance with GAAP, including without
limitation, all such expenditures associated with Capitalized Lease Obligations.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock, including each class of common stock and preferred stock of such Person,
including Preferred Stock, or any option, warrant or other security convertible
into or exchangeable for any of the foregoing.
"CAPITALIZED LEASE OBLIGATION" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebtedness represented by such obligations shall be
the capitalized amount of such obligations determined in accordance with GAAP.
"CASH EQUIVALENTS" means (i) obligations issued or unconditionally
guaranteed by the United States of America or any agency thereof, or obligations
issued by any agency or instrumentality thereof and backed by the full faith and
credit of the United States of America, (ii) commercial paper rated the highest
grade by Moody's Investors Service, Inc. and Standard & Poor's Ratings Service
and maturing not more than one year from the date of creation thereof, (iii)
time deposits with, and certificates of deposit and banker's acceptances issued
by, any bank having capital surplus and undivided profits aggregating at least
$500 million and maturing not more than one year from the date of creation
thereof, (iv) repurchase agreements with a term of not more than seven days that
are secured by a perfected security interest in an obligation described in
clause (i) and are with any bank described in clause (iii), and (v) readily
marketable direct obligations issued by any state of the United States of
America or any political subdivision thereof having one of the two highest
rating categories obtainable from either Moody's Investors Service, Inc. or
Standard & Poor's Ratings Service.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means TRISM, Inc., a Delaware corporation, until a successor
replaces it pursuant to this Indenture and thereafter means such successor.
3
<PAGE>
"CONSOLIDATED ASSETS" means, with respect to any Person, as of any
date, the aggregate assets of such Person and its Subsidiaries on a consolidated
basis, each item determined in accordance with GAAP.
"CONSOLIDATED LIABILITIES" means, with respect to any Person, as of
any date, the aggregate liabilities of such Person and its Subsidiaries on a
consolidated basis, each item determined in accordance with GAAP.
"CONSOLIDATED INCOME TAX EXPENSE" means for any period, as applied to
the Company, the provision for federal, state, local or foreign income taxes of
the Company and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, without duplication, for any
period, as applied to the Company, the sum of (a) the interest expense of the
Company and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP including, without limitation, (i) amortization of debt
discount, (ii) the net cost under Interest Swap Obligations (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation, (iv) accrued interest, (v) noncash interest payments and (vi)
commissions, discounts, and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, plus (b) the interest portion of
Capitalized Lease Obligations paid or accrued by the Company and its
Consolidated Subsidiaries, plus (c) amortization of capitalized interest, plus
(d) dividends in respect of Preferred Stock of the Company or any Subsidiary
held by Persons other than the Company or a Wholly Owned Subsidiary.
"CONSOLIDATED NET INCOME (LOSS)" means, for any period, the
Consolidated net income (or loss) of the Company and its Consolidated
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income (or loss), by excluding
without duplication (i) all extraordinary gains or losses; (ii) any net income
of any Person if such Person is not a Subsidiary, in which the Company or any of
its Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to the Company or a Subsidiary
of the Company during such period, but not in excess of the Company's PRO RATA
share of such Person's net income (or loss) subsequent to the Issue Date; (iii)
net income (or loss) of any Person combined with the Company or any of its
Subsidiaries in a "pooling of interests" basis attributable to any period prior
to the date of combination; (iv) any gain or loss, net of taxes, realized upon
the termination of any employee pension benefit plan; (v) net gains or losses in
respect of dispositions of assets other than in the ordinary course of business;
(vi) the net income of any Subsidiary to the extent that the declaration of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Subsidiary or its shareholders.
"CONSOLIDATED RENTAL PAYMENTS" of any Person means, for any period,
the aggregate rental obligations of such Person and its Consolidated
Subsidiaries (not including taxes, insurance, maintenance and similar expenses
that the lessee is obligated to pay under the terms of the relevant leases),
determined on a Consolidated basis in accordance with
4
<PAGE>
GAAP, payable in respect of such period (net of income from subleases thereof,
not including taxes, insurance, maintenance and similar expenses that the
sublessee is obligated to pay under the terms of such sublease), whether or not
such obligations are reflected as liabilities or commitments on a Consolidated
balance sheet of such Person and its Subsidiaries or in the notes thereto,
EXCLUDING, HOWEVER, in any event, (i) that portion of Consolidated Interest
Expense of such Person representing payments by such Person or any of its
Consolidated Subsidiaries in respect of Capitalized Lease Obligations (net of
payments to such Person or any of its Consolidated Subsidiaries under subleases
qualifying as capitalized lease subleases to the extent that such payments would
be deducted in determining Consolidated Interest Expense) and (ii) the aggregate
amount of amortization of obligations of such Person and its Consolidated
Subsidiaries in respect of such Capitalized Lease Obligations for such period
(net of payments to such Person or any of its Consolidated Subsidiaries and
subleases qualifying as capitalized lease subleases to the extent that such
payments could be deducted in determining such amortization amount).
"CONSOLIDATION" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"COVENANT DEFAULT" means any event (other than a Payment Default) the
occurrence of which entitles one or more Persons to accelerate the maturity of
any Designated Senior Indebtedness.
"CURRENCY HEDGE OBLIGATIONS" means, at any time as to any Person, the
obligations of such Person at such time which were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or future contract or other similar agreement or arrangement designed to protect
against or manage such Person's or any of its subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFICIENCY CORRECTION DATE" shall have the meaning provided in
Section 4.04.
"DESIGNATED SENIOR INDEBTEDNESS" means: (i) so long as any amount is
outstanding or any commitment remains in effect under the Senior Secured Credit
Facility, all Indebtedness under the Senior Secured Credit Facility; and (ii)
any other Senior Indebtedness which, at the time of determination, has an
aggregate principal amount outstanding of, and/or any commitments to lend up to,
at least $5 million and is specifically designated in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" by the Company,
PROVIDED that any such other Senior Indebtedness has been incurred with the
approval of the Board of Directors of the Company, such approval to be evidenced
by a Board Resolution.
5
<PAGE>
"DISPOSITION" means any direct or indirect sale, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger or
consolidation or by means of a Sale and Lease-Back Transaction).
"DISQUALIFIED CAPITAL STOCK" means, with respect to any Person, any
Capital Stock or Partnership Interest of such Person that, by its terms, by the
terms of any agreement related thereto or by the terms of any security into
which it is convertible, puttable or exchangeable, is, or upon the happening of
an event or the passage of time would be, required to be redeemed or repurchased
by such Person or its Subsidiaries, including at the option of the holder, in
whole or in part, or matures or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due, in each
instance on or prior to one year following the Maturity Date, in cash or
securities constituting Indebtedness.
"EVENT OF DEFAULT" shall have the meaning provided in Section 6.01.
"EXCESS PROCEEDS" shall have the meaning provided in Section 4.18.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission thereunder.
"FAIR MARKET VALUE" means, with respect to consideration received or
to be received pursuant to any transaction by any Person, the price which could
be negotiated in an arm's length free market transaction, for cash, between a
willing seller and a willing buyer, neither of whom is under undue pressure or
compulsion to complete the transaction, as determined in good faith by the Board
of Directors of the Company.
"FIXED CHARGE COVERAGE RATIO" means for any period the ratio of (a)
the sum of Consolidated Net Income (Loss), Consolidated Interest Expense,
one-third of Consolidated Rental Payments, and Consolidated Income Tax Expense
plus, without duplication, all depreciation, amortization and all other noncash
charges (excluding any such noncash charge constituting an extraordinary item of
loss or any noncash charge which requires an accrual of or a reserve for cash
charges for any future period), in each case, for such period, of the Company
and its Subsidiaries on a Consolidated basis, all determined in accordance with
GAAP to (b) Consolidated Interest Expense and one-third of Consolidated Rental
Payments for such period; PROVIDED that in making such computation, the
Consolidated Interest Expense attributable to interest on any Indebtedness
computed on a PRO FORMA basis and bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period.
"GAAP" means at any date, United States generally accepted accounting
principles, consistently applied, as set forth in the opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
("AICPA") and statements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be designated by the AICPA, that
are applicable to the circumstances as of the date of determination; provided,
however, that all calculations made for purposes of determining compliance with
the provisions set forth herein shall utilize GAAP in effect at the Issue Date.
6
<PAGE>
"GUARANTEE" means the Guarantee set forth in Article Twelve and any
additional guarantee of Senior Subordinated Notes.
"GUARANTOR" means (i) as of the Issue Date, the Initial Guarantors,
and (ii) thereafter, unless released from the Guarantee as permitted by this
Indenture, the Initial Guarantors and any other Person that becomes a guarantor
of the Senior Subordinated Notes in compliance with the provisions of this
Indenture and executes a supplemental indenture agreeing to be bound by the
terms of this Indenture.
"GUARANTOR SENIOR INDEBTEDNESS" means, with respect to any Guarantor,
the principal of, premium, if any, and interest (including interest to the
extent allowable, accruing after the filing of a petition initiating any
proceeding under any state, federal or foreign bankruptcy laws) of any
Indebtedness of such Guarantor (other than as otherwise provided in this
definition), whether outstanding on the Issue Date or thereafter, created,
incurred or assumed, UNLESS, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Guarantee of such Guarantor. Without limiting the
foregoing, in the case of the Senior Credit Faciliity, "Guarantor Senior
Indebtedness" means and includes all obligations of any guarantor thereunder,
including, without limitation, principal, premium, if any, interest (including
interest accruing after the filing of a petition initiating any proceeding under
state, federal or foreign bankruptcy laws), fees, breakage costs, reimbursement
obligations, indemnities, and all other obligations of such parities to the
Lenders. Notwithstanding the foregoing, "GUARANTOR SENIOR INDEBTEDNESS" does not
include (i) Indebtedness evidenced by the Guarantee of such Guarantor, (ii)
Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of such Guarantor, (iii) Indebtedness which when incurred and
without respect to any election under Section 1111(b) of Title 11, United States
Code, is without recourse to such Guarantor, (iv) Indebtedness which is
represented by Redeemable Capital Stock, (v) any liability for federal, state,
local or other taxes owed or owing by such Guarantor, (vi) any accounts payable
to trade creditors created, incurred, or assumed by such Guarantor in the
ordinary course of business in connection with obtaining goods, materials or
services, (vii) Indebtedness of such Guarantor to a Subsidiary of the Company,
(viii) amounts payable on any Indebtedness to any employee or Affiliate of such
Guarantor other than as provided in clause (vii) (except for any Indebtedness
evidenced by any debt securities of such Guarantor purchased by such employee or
Affiliate after such debt securities have been registered under the Securities
Act, PROVIDED that such debt securities rank senior in right of payment to the
Guarantee of such Guarantor and the issuance of the securities was permitted by
the covenant described in Section 4.13, (ix) that portion of any Indebtedness
which is issued by such Guarantor in violation of this Indenture, PROVIDED,
HOWEVER, that in the case of the preceding clause (ix), any Indebtedness issued
to any Person who had no actual knowledge that the incurrence of such
Indebtedness was not permitted under Section 4.13 and who received on the date
of issuance thereof a certificate from an officer of the Company to the effect
that the issuance of such Indebtedness would not violate such Section shall
constitute Guarantor Senior Indebtedness and (x) Indebtedness of such Guarantor
representing a guarantee of Subordinated Indebtedness of the Company or any
other Guarantor, or a guarantee of Indebtedness that ranks PARI PASSU with the
Senior Subordinated Notes.
"HOLDER" or "SECURITYHOLDER" means the Person in whose name a Senior
Subordinated Note is registered on the Registrar's books.
"INDEBTEDNESS" as applied to any Person means, at any time, without
duplication, whether recourse is to all or a portion of the assets of such
Person, and whether or
7
<PAGE>
not contingent: (i) any obligation of such Person for borrowed money; (ii) any
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including, without limitation, any such obligations incurred in
connection with acquisition of Property, assets or businesses, excluding
accounts payable made in the ordinary course of business which are not more than
90 days overdue or which are being contested in good faith and by appropriate
proceedings; (iii) any obligation of such Person for all or any part of the
purchase price of Property or assets or for the cost of Property constructed or
of improvements thereto (including any obligation under or in connection with
any letter of credit related thereto), other than accounts payable incurred in
respect of Property and services purchased in the ordinary course of business
which are no more than 90 days overdue or which are being contested in good
faith and by appropriate proceedings; (iv) any obligation of such Person upon
which interest charges are customarily paid (other than accounts payable
incurred in the ordinary course of business); (v) any obligation of such Person
under conditional sale or other title retention agreements relating to purchased
Property; (vi) any obligation of such Person issued or assumed as the deferred
purchase price of Property or assets (other than accounts payable incurred in
the ordinary course of business which are no more than 90 days overdue or which
are being contested in good faith and by appropriate proceedings); (vii) any
Capitalized Lease Obligation or Attributable Indebtedness pursuant to any Sale
and Lease-Back Transaction of such Person; (viii) any obligation secured by (or
for which the obligee thereof has an existing right, contingent or otherwise, to
be secured by) any Lien on Property owned or acquired, whether or not any
obligation secured thereby has been assumed, by such Person; (ix) any obligation
of such Person in respect of any letter of credit supporting any obligation of
any other Person; (x) the maximum fixed repurchase price of any Disqualified
Capital Stock of such Person (or if such Person is a subsidiary, any Preferred
Stock of such Person); (xi) the notional amount of any Interest Swap Obligation
or Currency Hedge Obligation of such Person at the time of determination; and
(xii) any obligation which is in economic effect a guarantee, regardless of its
characterization (other than an endorsement in the ordinary course of business),
with respect to any Indebtedness of another Person, to the extent guaranteed.
For purposes of the preceding sentence, the maximum fixed repurchase price of
any Disqualified Capital Stock or subsidiary Preferred Stock that does not have
a fixed repurchase price shall be calculated in accordance with the terms of
such Disqualified Capital Stock or subsidiary Preferred Stock as if such
Disqualified Capital Stock or subsidiary Preferred Stock were repurchased on any
date on which Indebtedness shall be required to be determined pursuant to this
Indenture; provided that if such Disqualified Capital Stock or subsidiary
Preferred Stock is not then permitted to be repurchased, the repurchase price
shall be the book value of such Disqualified Capital Stock or subsidiary
Preferred Stock. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any guarantees at such date;
provided, further, that for purposes of calculating the amount of any
non-interest bearing or other discount security, such Indebtedness shall be
deemed to be the principal amount thereof that would be shown on the balance
sheet of the issuer dated such date prepared in accordance with GAAP but that
such security shall be deemed to have been incurred only on the date of the
original issuance thereof.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
8
<PAGE>
"INDEPENDENT FINANCIAL ADVISOR" means an investment banking,
accounting or appraisal firm of national standing (i) which does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect ownership interest or material direct or indirect financial interest in
the Company or any of its Subsidiaries or Affiliates, provided that ownership of
three percent (3%) or less of the issued and outstanding shares of Capital Stock
of the Company shall not constitute having a direct or indirect ownership or
financial interest in the Company or any of its Subsidiaries or Affiliates, and
(ii) which, in the judgment of the disinterested members of the Board of
Directors of the Company, as evidenced by a Board Resolution, is independent and
qualified to perform the task for which it is to be engaged.
"INITIAL GUARANTORS" means TRISM Secured Transportation, Inc. (f/k/a
Tri-State Motor Transit Co. of Delaware), a Delaware corporation, TRISM Heavy
Haul, Inc. (f/k/a TSMB 2 Acquisition Corporation), a Delaware corporation, E. L.
Powell & Sons Trucking Co., Inc., an Oklahoma corporation, Tri-State Motor
Transit Co., a Delaware corporation, TRISM Specialized Carriers, Inc., a Georgia
corporation, Aero Body and Truck Equipment, Inc., a Delaware corporation, TRISM
Special Services, Inc., a Georgia corporation, Diablo Systems, Inc. (d/b/a
Diablo Transportation, Inc.), a California corporation, TRISM Eastern, Inc.
(d/b/a C. I. Whitten Transfer Co.), a Delaware corporation, TRISM Transport,
Inc., a Delaware corporation, TRISM Transport Services, Inc., a Utah
corporation, TRISM Logistics, Inc., a New Jersey corporation, and TRISM
Equipment, Inc., a Delaware corporation.
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Senior Subordinated Notes.
"INTEREST SWAP OBLIGATION" means any obligation of any Person pursuant
to any arrangement with any other Person whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount; provided that
the term "Interest Swap Obligation" shall also include interest rate exchange,
collar, cap, swap option or similar agreements providing interest rate
protection.
"INVESTMENT" by any Person means (i) any investment or acquisition by
such Person, in any transaction or series of related transactions, whether by a
purchase of Capital Stock, Partnership Interests or assets, share purchase,
capital contribution, loan, advance (other than (a) reasonable loans and
advances to employees for moving and travel expenses or as salary advances,
incurred, in each case, in the ordinary course of business consistent with past
practice, and (b) trade credit extended to customers in the ordinary course of
business of the Company or any of its Subsidiaries consistent with past practice
and on terms and conditions common in the industry and no less favorable to the
Company or such Subsidiary than trade credit extended by other suppliers
similarly situated) or similar credit extension constituting Indebtedness of
another Person, and any guarantee of Indebtedness of any other Person (other
than a guarantee of Indebtedness incurred under the Senior Secured Credit
Facility or this Indenture), and (ii) any Capital Expenditure. The amount of any
Investment shall be the greater of (A) the Fair Market Value of the assets being
transferred, and (B) the gross amount of assets acquired as a result of
9
<PAGE>
such Investment (or in the case of an Investment in Capital Stock or Partnership
Interests issued by another Person, the appropriate proportion of the gross
assets of such other Person).
"ISSUE DATE" means February 4, 2000.
"LENDER" means collectively the lenders and agent under the Senior
Secured Credit Facility.
"LIEN" means any mortgage, pledge, lien, encumbrance, charge or
adverse claim affecting title or resulting in an encumbrance against real or
personal property, or a security interest of any kind (including any lease,
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing, any option or other agreement to
sell which is intended to constitute or create a security interest, mortgage,
pledge or lien (other than bona fide options and agreements for the sale of
assets) and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"MAINTENANCE CAPITAL EXPENDITURES" means Capital Expenditures directly
related to maintaining, servicing, replacing and upgrading the tractors,
trailers, vans and other equipment used by the Company or any of its
Subsidiaries in the operation of the TRISM Business on the Issue Date, and
specifically excludes Capital Expenditures related to the acquisition of any
other tractors, trailers, vans and other equipment.
"MATURITY DATE" means February 4, 2005.
"MINIMUM NET WORTH" means an amount equal to 80% of the Net Worth of
the Company as of the Issue Date.
"NET CASH PROCEEDS" means with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Subsidiaries from such Asset
Sale, net of (i) reasonable and customary expenses directly related to such
Asset Sale, (ii) provision for the net amount of all taxes directly payable as a
result of such Asset Sale, and (iii) amounts required to be applied to the
repayment of Indebtedness (other than Indebtedness hereunder or any Indebtedness
that is not secured by the assets that were the subject of such Asset Sale)
secured by a Permitted Lien on the assets that were the subject of such Asset
Sale.
"NET PROCEEDS PURCHASE" shall have the meaning provided in Section
4.18.
"NET WORTH" as of any date means, with respect to any Person, the
amount of the equity of the holders of Capital Stock of such Person that would
appear on the balance sheet of such Person as of such date, determined in
accordance with GAAP, adjusted to exclude (to the extent included in such
equity) the amount of equity attributable to any Disqualified Capital Stock.
10
<PAGE>
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the President, any Vice President, the Chief Administrative Officer, the
Chief Financial Officer, the Controller, or the Secretary of such Person.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 13.04 and 13.05.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
13.04 and 13.05. Unless otherwise required by the Trustee, the legal counsel may
be an employee of or counsel to the Company or the Trustee.
"PARTNERSHIP INTEREST" means any general or limited partnership
interest and any interest as a member of a limited liability company, or any
option, warrant or other security convertible into or exchangeable for any of
the foregoing.
"PAYING AGENT" shall have the meaning provided in Section 2.03.
"PAYMENT DEFAULT" means any default in the payment of principal,
premium, if any, or interest on any Senior Indebtedness, beyond any applicable
grace period with respect thereto.
"PAYMENT RESTRICTION" means, with respect to a Subsidiary of any
Person, any encumbrance, restriction or limitation, whether by operation of the
terms of its charter or by reason of any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation, on the ability of (i)
such Subsidiary to (a) pay dividends or make other distributions on its Capital
Stock or Partnership Interests or make payments on any obligation, liability or
Indebtedness owed to such Person or any other Subsidiary of such Person, (b)
make loans or advances to such Person or any other Subsidiary of such Person, or
(c) transfer any of its properties or assets to such Person or any other
Subsidiary of such Person, or (ii) such Person or any other Subsidiary of such
Person to receive or retain any such (a) dividends, distributions or payments,
(b) loans or advances, or (c) transfers of properties or assets.
"PERMITTED BUSINESS INVESTMENT" means any Investment (other than
Maintenance Capital Expenditures) directly related to the TRISM Business, as it
is conducted as of the Issue Date, made by the expenditure of cash or Cash
Equivalents (or by assumption or incurrence of Indebtedness to the extent
permitted by Section 4.13(e) hereof); PROVIDED, HOWEVER, that (i) the aggregate
of all Permitted Business Investments in any Yearly Period shall not exceed $5
million (or, in the case of a Yearly Period consisting of less than 365 days, a
proportionally lower amount based upon the number of days in such Yearly
Period), and (ii) any Permitted Business Investment which individually or
together with any similar or related
11
<PAGE>
Permitted Business Investments and Permitted Business Investments constituting
part of a common plan or series of transactions involves an Investment of an
amount of $2.5 million or more must be approved by the Board of Directors as
evidenced by a Board Resolution.
"PERMITTED INVESTMENT" by any Person means (i) any Permitted Business
Investment, (ii) cash and Cash Equivalents, (iii) Investments existing on the
Issue Date, (iv) Investments by the Company or any Wholly-owned Subsidiary of
the Company in the Company or any other Wholly-owned Subsidiary of the Company
that is a Guarantor (other than any such Investments which would constitute
Stock Payments or Restricted Debt Prepayments), and (v) Maintenance Capital
Expenditures subject to, and permitted by, Section 4.22.
"PERMITTED JUNIOR SECURITIES" means any securities of the Company or
any other corporation that are equity securities or are subordinated in right of
payment to all Senior Indebtedness, that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than, the Senior
Subordinated Notes are so subordinated as provided in this Indenture.
"PERMITTED LIENS" shall mean (i) Liens for taxes, assessments, and
governmental charges to the extent not required to be paid under this Indenture;
(ii) statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen, or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent or being
contested in good faith by appropriate process of law, and for which a reserve
or other appropriate provision, if any, as shall be required by GAAP shall have
been made; (iii) pledges or deposits in the ordinary course of business to
secure lease obligations or nondelinquent obligations under workers'
compensation, unemployment insurance or similar legislation; (iv) Liens to
secure the performance of public statutory obligations that are not delinquent,
appeal bonds, performance bonds or other obligations of a like nature (other
than for borrowed money); (v) Liens arising under government contracts in the
ordinary course of business that do not secure any Indebtedness; (vi) easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with the
business of the Company or any Subsidiary of the Company incurred or arising in
the ordinary course of business; (vii) rights of banks to set off deposits
against debts owed to said banks; (viii) any interest or title of a lessor in
the property subject to any lease, other than any such interest or title
resulting from or arising out of a Default by the Company or any Subsidiary of
the Company of its obligations under such lease; (ix) any other Liens imposed by
operation of law which do not materially affect the Company's or any of its
Subsidiaries' ability to perform its obligations under this Indenture; (x) any
Liens arising under this Indenture, (xi) Liens arising under the Senior Secured
Credit Facility; (xii) Liens securing purchase money Indebtedness; and (xiii)
Liens on property of a Person existing at the time such Person is acquired by,
or merged into or consolidated with, the Company or a Wholly-owned Subsidiary
that is a Guarantor if (a) such Liens were in existence prior to the
contemplation of such acquisition, merger or consolidation and do not extend to
any assets other than those directly or indirectly acquired as a result of such
acquisition, merger or consolidation, (b) such acquisition, merger or
consolidation is a Permitted Business Investment hereunder, and (c) such Liens
secure Indebtedness in an aggregate principal amount at any one time outstanding
of less than 80% of
12
<PAGE>
the book value of the assets of such Person immediately prior to such
acquisition, merger or consolidation.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"PLAN OF LIQUIDATION" means, with respect to any Person, a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference Capital Stock or Partnership Interests,
whether outstanding on the date hereof or issued after the date of this
Indenture, and including, without limitation, all classes and series of
preferred or preference stock of such Person.
"PROPERTY" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, excluding Capital Stock in any other Person.
"QUALIFIED CAPITAL STOCK" means, with respect to any Person, any
Capital Stock or Partnership Interest of such Person that is not Disqualified
Capital Stock.
"RECORD DATE" means the Record Dates specified in the Senior
Subordinated Notes, whether or not a Business Day.
"REDEEMABLE CAPITAL STOCK" means any Capital Stock that, (i) either by
its terms, by the terms of any security into which it is convertible or
exchangeable or otherwise, is or upon the happening of any event or passage of
time would be, required to be redeemed (in whole or in part) prior to the final
Stated Maturity of the Senior Subordinated Notes or is redeemable (in whole or
in part) at the option of the holder thereof at any time prior to such final
Stated Maturity, or (ii) is convertible into or exchangeable for debt securities
at any time prior to such final Stated Maturity.
"REDEMPTION DATE," when used with respect to any Senior Subordinated
Note to be redeemed or purchased, means the date fixed for such redemption or
purchase pursuant to this Indenture and the Senior Subordinated Notes.
"REDEMPTION PRICE," when used with respect to any Senior Subordinated
Note to be redeemed, means the price fixed for such redemption pursuant to this
Indenture and the Senior Subordinated Notes.
13
<PAGE>
"REGISTRAR" shall have the meaning provided in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the Issue Date, between the Company and certain Holders,
substantially in the form of EXHIBIT B attached hereto, as such may be amended,
supplemented or otherwise modified from time to time.
"RESTRICTED DEBT PREPAYMENT" means any principal payment, purchase,
redemption, defeasance (including, but not limited to, in substance or legal
defeasance) or other acquisition or retirement for value, directly or
indirectly, by the Company or any of its Subsidiaries, prior to the scheduled
maturity or prior to any scheduled repayment of principal or sinking fund
payment, as the case may be, on or in respect of Indebtedness the Company or any
of its Subsidiaries that is Subordinated Indebtedness or ranks PARI PASSU in
right of payment to the Senior Subordinated Notes or the Guarantee, as
applicable.
"RESTRICTED PAYMENT" means any (i) Stock Payment, (ii) Investment
(other than a Permitted Investment) or (iii) Restricted Debt Prepayment.
"SALE AND LEASE-BACK TRANSACTION" means, with respect to any Person,
any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its subsidiaries.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"SENIOR INDEBTEDNESS" means the principal of, premium, if any, and
interest (including interest, to the extent allowable, accruing after the filing
of a petition initiating any proceeding under any state, federal or foreign
bankruptcy laws) on any Indebtedness of the Company (other than as otherwise
provided in this definition), whether outstanding on the Issue Date or
thereafter created, incurred or assumed, UNLESS, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Senior Subordinated Notes.
Notwithstanding the foregoing, "SENIOR INDEBTEDNESS" shall not include (i)
Indebtedness evidenced by the Senior Subordinated Notes or the Guarantees, (ii)
Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of the Company or any Subsidiary, (iii) Indebtedness which when
incurred and without respect to any election under Section 1111(b) of Title 11,
United States Code, is without recourse to the Company or any Subsidiary, (iv)
Indebtedness which is represented by Redeemable Capital Stock, (v) any liability
for federal, state, local, foreign or other taxes owed or owing by the Company
or any Subsidiary, (vi) any accounts payable to trade creditors created,
incurred or assumed by the Company or any Subsidiary of the Company in the
ordinary course of business in connection with obtaining goods, materials or
services, (vii) Indebtedness of the Company to a Subsidiary, (viii) amounts
payable on any Indebtedness to any employee or Affiliate of the Company other
than as provided in clause (vii) (except for any Indebtedness evidenced by any
debt securities of the Company purchased by such employee or Affiliate after
such debt
14
<PAGE>
securities have been registered under the Securities Act, PROVIDED that
such debt securities rank senior in right of payment to the Senior Subordinated
Notes and the issuance of the securities was permitted by Section 4.13), and
(ix) that portion of any Indebtedness which at the time of issuance is issued in
violation of this Indenture; PROVIDED, HOWEVER, that in the case of this clause
(ix), any Indebtedness issued to any Person who had no actual knowledge that the
incurrence of such Indebtedness was not permitted under Section 4.13 and who
received on the date of issuance thereof a certificate from an officer of the
Company to the effect that the issuance of such Indebtedness would not violate
Section 4.13 shall constitute Senior Indebtedness. Without limiting the
foregoing, in the case of the Senior Credit Facility, "Senior Indebtedness"
means and includes all obligations of any guarantor thereunder, including,
without limitation, principal, premium, if any, interest (including interest
accruing after the filing of a petition initiating any proceeding under state,
federal or foreign bankruptcy laws), fees, breakage costs, reimbursement
obligations, indemnities, and all other obligations of such parties to the
Lenders.
"SENIOR REPRESENTATIVE" means the agent bank under the Senior Secured
Credit Facility or any other representatives of the holders of Designated Senior
Indebtedness, as the case may be.
"SENIOR SUBORDINATED NOTES" means the Company's 12% Senior
Subordinated Notes Due 2005, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to this Indenture.
"SENIOR SECURED CREDIT FACILITY" means the Post-Confirmation Loan and
Security Agreement, dated as of the date of this Indenture, by and among the
Company, the Subsidiaries of the Company signatories thereto and Lender,
together with the notes, security agreements, guarantees and other Loan
Documents (as therein defined) related thereto, as the same may be amended,
extended, renewed, restated, supplemented or otherwise modified from time to
time, pursuant to which Lender may loan up to $45 million to the Company, and
any agreement governing Indebtedness incurred to refund or refinance the
entirety of the borrowings and commitments then outstanding or permitted to be
outstanding under such Senior Secured Credit Facility or such agreement.
"STATED MATURITY" when used with respect to any Senior Subordinated
Note or any installment of interest thereon, means the dates specified in such
Senior Subordinated Note as the fixed date on which the principal of such Senior
Subordinated Note or such installment of interest is due and payable, and when
used with respect to any other Indebtedness, means the date specified in the
instrument governing such Indebtedness as the fixed date on which the principal
of such Indebtedness or any installment of interest is due and payable.
"STOCK PAYMENT" means, with respect to any Person, (i) the declaration
or payment by such Person, directly or indirectly, either in cash or in
property, of any dividend on (except, in the case of the Company, dividends
payable solely in Qualified Capital Stock of the Company), or the making by such
Person or any of its Subsidiaries of any other distribution in respect of, such
Person's Capital Stock or Partnership Interests or any warrants, rights or
options to purchase or acquire shares of any class of such Capital Stock or
Partnership Interests, or (ii) the redemption, repurchase, retirement or other
acquisition for value by such Person or any of its Subsidiaries, directly or
indirectly, of such Person's or any of its Subsidiaries' or Affiliates' Capital
Stock or Partnership Interests or any warrants, rights or options to purchase or
acquire shares of any class of such Capital Stock or Partnership Interests other
than, in the case of the
15
<PAGE>
Company, through the issuance in exchange therefor solely of Qualified Capital
Stock of the Company; provided, however, that in the case of a Subsidiary of the
Company, the term "Stock Payment" shall not include any such payment with
respect to its Capital Stock or Partnership Interests or warrants, rights or
options to purchase or acquire shares of any class of its Capital Stock or
Partnership Interests if such payment is made to the Company or a Wholly-owned
Subsidiary of the Company that is a Guarantor as of the Issue Date.
"SUBORDINATED INDEBTEDNESS" means (i) Indebtedness of the Company
which is subordinated in right of payment to the Senior Subordinated Notes and
(ii) Indebtedness of any Subsidiary which is subordinated in right of payment to
the Guarantee.
"SUBSIDIARY" means, with respect to any Person, (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is, at the date of determination, directly or indirectly,
owned by such Person, by one or more subsidiaries of such Person or by such
Person and one or more subsidiaries of such Person or (ii) a partnership in
which such Person or a subsidiary of such Person is, at the date of
determination, a general partner of such partnership, or if such Person or its
subsidiary is entitled to receive more than 50% of the assets of such
partnership upon its dissolution, or (iii) any limited liability company or any
other Person (other than a corporation or a partnership) in which such Person, a
subsidiary of such Person or such Person and one or more subsidiaries of such
Person, directly or indirectly, at the date of determination, has (a) at least a
majority ownership interest or (b) the power to elect or direct the election of
a majority of the directors or other governing body of such Person.
"SURVIVING PERSON" shall have the meaning provided in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture; provided, however, that, in the event the Trust Indenture Act of 1939
is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939, as so amended.
"TRISM BUSINESS" means the transportation of extraordinarily heavy or
oversized loads, or cargoes with special handling requirements, such as
munitions, explosives and radioactive and hazardous waste; the provision of
capacity and dedicated fleet management services; the provision of logistic
management services with respect to complex moves and special projects,
including those involving hazardous materials and engineered equipment; and the
provision of intermodal support services to the transportation industry,
including terminal gate inspections and the coordination of terminal
administration, container-yard operations, maintenance and repair
administration, rail-terminal operations, chassis-pool management and asset
disposal, as such business is conducted on the Issue Date.
"TRUST OFFICER" means any officer of the Trustee assigned by the
Trustee to administer this Indenture.
16
<PAGE>
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"VOTING STOCK" means with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holder thereof
(whether at all times or at the times that such class of Capital Stock has
voting power by reason of the happening of any contingency) to vote in the
election of members of the Board of Directors or comparable body of such Person.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of a specified Person all
of the shares of Capital Stock, or, if applicable, all of the Partnership
Interests, of which (other than directors' qualifying shares) are at the time
directly or indirectly owned by the specified Person or owned by a Wholly-owned
Subsidiary of the specified Person.
"YEARLY PERIOD" means each fiscal year (consisting of not less than
four fiscal quarters) of the Company; provided that the first Yearly Period
shall begin on the Issue Date and shall end on December 31, 2000, and the last
Yearly Period shall begin on the first day of the applicable fiscal year and
shall end on the Maturity Date.
Section 1.02 INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Senior Subordinated Notes.
"indenture security holder" means a Holder of a Senior Subordinated
Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the indenture securities means the Company, any
Guarantor, or any other obligor on the Senior Subordinated Notes or the
Guarantee.
17
<PAGE>
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
Section 1.03 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 GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein", "hereof", "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(7) "including" is not intended to be a limiting term;
(8) references to sections of or rules under the Securities Act
or the Exchange Act shall be deemed to include substitute, replacement
or successor sections or rules adopted by the Commission from time to
time; and
(9) all references to amounts of money or $ mean U.S. Dollars.
ARTICLE TWO
THE SENIOR SUBORDINATED NOTES
Section 2.01 FORM AND DATING.
The Senior Subordinated Notes, the notations thereon relating to the
Guarantee and the Trustee's certificate of authentication shall be substantially
in the form of EXHIBIT A. The Senior Subordinated Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company and the Trustee shall approve the form of the Senior Subordinated Notes
and any notation, legend or endorsement on them. Each Senior Subordinated Note
shall be dated the date of its authentication.
The terms and provisions contained in the Senior Subordinated Notes
and the notation of guarantee shall constitute, and are hereby expressly made, a
part of this Indenture
18
<PAGE>
and, to the extent applicable, the Company, the Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Section 2.02 EXECUTION AND AUTHENTICATION.
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Senior Subordinated Notes for the Company by
manual or facsimile signature. Each Guarantor shall execute the notation of
guarantee in the manner set forth in Section 12.10.
If an Officer whose signature is on a Senior Subordinated Note was an
Officer at the time of such execution but no longer holds that office at the
time the Trustee authenticates the Senior Subordinated Note, the Senior
Subordinated Note shall be valid nevertheless.
A Senior Subordinated Note shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on the
Senior Subordinated Note. The signature shall be conclusive evidence that the
Senior Subordinated Note has been authenticated under this Indenture.
The Trustee shall authenticate on the Issue Date, Senior Subordinated
Notes for original issue in the aggregate principal amount of up to $30,000,000,
upon a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of Senior Subordinated Notes to
be authenticated and the date on which the Senior Subordinated Notes are to be
authenticated. The aggregate principal amount of Senior Subordinated Notes
outstanding at any time may not exceed $30,000,000, except as provided in
Section 2.07. Upon the written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Senior Subordinated Notes in
substitution of Senior Subordinated Notes originally issued to reflect any name
change of the Company.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Senior Subordinated Notes. Unless otherwise
provided in the appointment, an authenticating agent may authenticate Senior
Subordinated Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Senior Subordinated Notes shall be issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.
Section 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in New York, New York
where (a) Senior Subordinated Notes may be presented or surrendered for
registration of transfer or for exchange ("Registrar"), (b) Senior Subordinated
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the
19
<PAGE>
Senior Subordinated Notes and this Indenture may be served. The Company may also
from time to time designate one or more other offices or agencies where the
Senior Subordinated Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in New York, New York for such
purposes. The Company may act as its own Registrar or Paying Agent, except that
for the purposes of Articles Three and Nine and Section 4.18, neither the
Company nor any of its Subsidiaries or Affiliates shall act as Paying Agent. The
Registrar shall keep a register of the Senior Subordinated Notes and of their
transfer and exchange. The Company, upon notice to the Trustee, may have one or
more co-Registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any additional
paying agent. The Company initially appoints the Trustee as Registrar and Paying
Agent until such time as the Trustee has resigned or a successor has been
appointed.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall incorporate
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such.
Section 2.04 PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Senior Subordinated Notes (whether such assets
have been distributed to it by the Company or any other obligor on the Senior
Subordinated Notes), and shall notify the Trustee of any Default by the Company
(or any other obligor on the Senior Subordinated Notes) in making any such
payment. If the Company or its Subsidiary or Affiliate acts as Paying Agent, it
shall segregate such assets and hold them as a separate trust fund. The Company
at any time may require a Paying Agent to distribute all assets held by it to
the Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company (or other obligor or
guarantor on the Senior Subordinated Notes) to the Paying Agent, the Paying
Agent shall have no further liability for such assets.
Section 2.05 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least ten days prior to each Interest Payment Date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
20
<PAGE>
Section 2.06 TRANSFER AND EXCHANGE.
When Senior Subordinated Notes are presented to the Registrar or a
co-Registrar with a request to register the transfer of such Senior Subordinated
Notes or to exchange such Senior Subordinated Notes for an equal principal
amount of Senior Subordinated Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; provided, however,
that the Senior Subordinated Notes surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Senior Subordinated Notes at the Registrar's
or co-Registrar's request. No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges or transfers pursuant to Sections 2.02, 2.07, 2.10, 3.03,
3.07, 4.18 or 10.06). The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Senior Subordinated Note (i) during
a period beginning at the opening of business 15 days before the day of any
selection of Senior Subordinated Notes for redemption under Section 3.02 and
ending at the close of business on such day of selection and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Senior Subordinated Note being redeemed in part.
Section 2.07 REPLACEMENT SENIOR SUBORDINATED NOTES.
If a mutilated Senior Subordinated Note is surrendered to the Trustee
or if the Holder of a Senior Subordinated Note claims that the Senior
Subordinated Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Senior Subordinated
Note if the Trustee's requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Senior Subordinated Note is replaced. The Company may charge such Holder for
its reasonable, out-of-pocket expenses in replacing a Senior Subordinated Note,
including reasonable fees and expenses of counsel.
Every replacement Senior Subordinated Note is an additional obligation
of the Company and is guaranteed by each Guarantor in the same manner as other
Senior Subordinated Notes duly issued hereunder.
Section 2.08 OUTSTANDING SENIOR SUBORDINATED NOTES.
Senior Subordinated Notes outstanding at any time are all the Senior
Subordinated Notes that have been authenticated by the Trustee except those
canceled by it, those delivered to it for cancellation and those described in
this Section 2.08 as not outstanding. A Senior Subordinated Note does not cease
to be outstanding because the Company, the Guarantors or any of their respective
Affiliates holds the Senior Subordinated Note.
21
<PAGE>
If a Senior Subordinated Note is replaced pursuant to Section 2.07
(other than a mutilated Senior Subordinated Note surrendered for replacement),
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Senior Subordinated Note is held by a bona fide purchaser. A
mutilated Senior Subordinated Note ceases to be outstanding upon surrender of
such Senior Subordinated Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or its Subsidiary or Affiliate) holds U.S. Legal Tender
sufficient to pay all of the principal and premium, if any, and interest due on
the Senior Subordinated Notes payable on that date, then on and after that date
such Senior Subordinated Notes (to the extent of the principal amount redeemed,
in the case of a partial redemption) cease to be outstanding and interest on
them ceases to accrue.
Section 2.09 TREASURY SENIOR SUBORDINATED NOTES.
In determining whether the Holders of the required principal amount of
Senior Subordinated Notes have concurred in any direction, waiver or consent,
Senior Subordinated Notes owned by the Company, the Guarantors or any of their
respective Affiliates shall be disregarded, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Senior Subordinated Notes that a Trust
Officer of the Trustee knows or has reason to know are so owned shall be
disregarded.
The Company shall notify the Trustee, in writing (which notice shall
constitute actual notice for purposes of the foregoing sentence), when it, the
Guarantors or any of their respective Affiliates repurchases or otherwise
acquires Senior Subordinated Notes, of the aggregate principal amount of such
Senior Subordinated Notes so repurchased or otherwise acquired and such other
information as the Trustee may reasonably request and the Trustee shall be
entitled to rely thereon.
Section 2.10 TEMPORARY SENIOR SUBORDINATED NOTES.
Until definitive Senior Subordinated Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Senior
Subordinated Notes. Temporary Senior Subordinated Notes shall be substantially
in the form of definitive Senior Subordinated Notes but may have variations that
the Company considers appropriate for temporary Senior Subordinated Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Senior Subordinated Notes in exchange for temporary
Senior Subordinated Notes, without charge to the Holder. Until so exchanged, the
temporary Senior Subordinated Notes shall be entitled to the same benefits under
this Indenture as definitive Senior Subordinated Notes.
Section 2.11 CANCELLATION.
The Company at any time may deliver Senior Subordinated Notes to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Senior Subordinated Notes surrendered to them for registration
of transfer, exchange or payment. The
22
<PAGE>
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or its Subsidiary or Affiliate), and no one else, shall
cancel and shall dispose of all Senior Subordinated Notes surrendered for
registration of transfer, exchange, payment or cancellation and shall deliver a
certificate of such cancellation to the Company. Subject to Section 2.07, the
Company may not issue new Senior Subordinated Notes to replace Senior
Subordinated Notes that it has paid or delivered to the Trustee for
cancellation. If the Company or any of its Subsidiaries shall acquire any of the
Senior Subordinated Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Senior Subordinated Notes
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.
Section 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Senior
Subordinated Notes, it shall pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest or the next succeeding Business Day if such date is not a Business Day.
At least 15 days before the subsequent special record date, the Company shall
mail to each Holder, with a copy to the Trustee, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
Section 2.13 CUSIP NUMBER.
The Company in issuing the Senior Subordinated Notes shall use a
"CUSIP" number and the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Senior Subordinated
Notes, and that reliance may be placed only on the other identification numbers
printed on the Senior Subordinated Notes.
ARTICLE THREE
REDEMPTION
Section 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Senior Subordinated Notes pursuant to
Section 3.07 hereof, it shall notify the Trustee of the Redemption Date and the
principal amount of Senior Subordinated Notes to be redeemed and whether it
wants the Trustee to give notice of redemption to the Holders at least 30 days
(unless shorter notice shall be satisfactory to the Trustee, as evidenced in a
writing signed on behalf of the Trustee) but not more than 60 days before the
Redemption Date. Any such notice may be canceled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
The Company shall give each notice provided for in this Section 3.01,
at its expense, at least 30 days before the applicable Redemption Date (unless a
shorter notice period shall be satisfactory to the Trustee, as evidenced in a
writing signed on behalf of the Trustee),
23
<PAGE>
together with an Officers' Certificate and an Opinion of Counsel stating that
such redemption shall comply with the conditions contained herein and in the
Senior Subordinated Notes.
Section 3.02 SELECTION OF SENIOR SUBORDINATED NOTES TO BE REDEEMED.
If fewer than all of the Senior Subordinated Notes are to be redeemed,
the Trustee shall select the Senior Subordinated Notes to be redeemed on a pro
rata basis (or on as nearly a pro rata basis as is practicable, and in such
case, by lot or by such other method as the Trustee shall determine to be fair
and appropriate) and in such manner as complies with applicable legal and other
requirements, if any.
The Trustee shall make the selection from the Senior Subordinated
Notes outstanding and not previously called for redemption and shall promptly
notify the Company in writing of the Senior Subordinated Notes selected for
redemption and, in the case of any Senior Subordinated Note selected for partial
redemption, the principal amount thereof to be redeemed. Senior Subordinated
Notes in denominations of $1,000 or any lesser amount may be redeemed only in
whole. The Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Senior Subordinated Notes that
have denominations larger than $1,000; provided, however, that the Trustee may
select for redemption any Senior Subordinated Note that has a principal amount
of less than $1,000. Provisions of this Indenture that apply to Senior
Subordinated Notes called for redemption also apply to portions of Senior
Subordinated Notes called for redemption.
Section 3.03 NOTICE OF REDEMPTION.
At least 30 days (unless shorter notice shall be satisfactory to the
Trustee, as evidenced in a writing signed on behalf of the Trustee) 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 whose Senior Subordinated Notes
are to be redeemed at its registered address. At the Company's request, the
Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. Each notice for redemption shall identify the Senior
Subordinated Notes 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 Senior Subordinated Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price and accrued
interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Senior Subordinated Notes called for redemption ceases
to accrue on and after the Redemption Date, and the only remaining right of
the Holders of such Senior Subordinated Notes is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the Senior
Subordinated Notes redeemed;
24
<PAGE>
(6) if any Senior Subordinated Note is being redeemed in part, the
portion of the principal amount of such Senior Subordinated Note to be
redeemed and that, after the Redemption Date, and upon surrender of such
Senior Subordinated Note, a new Senior Subordinated Note or Senior
Subordinated Notes in aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(7) if fewer than all the Senior Subordinated Notes are to be
redeemed, the identification of the particular Senior Subordinated Notes
(or portion thereof) to be redeemed, as well as the aggregate principal
amount of Senior Subordinated Notes to be redeemed and the aggregate
principal amount of Senior Subordinated Notes to be outstanding after such
partial redemption; and
(8) the Paragraph of the Senior Subordinated Notes or Section of this
Indenture pursuant to which the Senior Subordinated Notes are to be
redeemed.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03,
Senior Subordinated Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon surrender to the Trustee or
Paying Agent, such Senior Subordinated Notes called for redemption shall be paid
at the Redemption Price.
Section 3.05 DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 AM, New York City time, on each Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price of all Senior Subordinated Notes to be redeemed on that
date (other than Senior Subordinated Notes or portions thereof called for
redemption on that date which have been delivered by the Company to the Trustee
for cancellation). The Paying Agent shall promptly return to the Company any
U.S. Legal Tender so deposited which is not required for that purpose upon the
written request of the Company, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price and accrued interest,
if any, interest on the Senior Subordinated Notes to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such Senior
Subordinated Notes are presented for payment.
Section 3.06 SENIOR SUBORDINATED NOTES REDEEMED IN PART.
Upon surrender of a Senior Subordinated Note that is to be redeemed in
part, the Trustee shall authenticate for the Holder a new Senior Subordinated
Note or Senior Subordinated Notes equal in principal amount to the unredeemed
portion of the Senior Subordinated Note surrendered.
25
<PAGE>
Section 3.07 OPTIONAL REDEMPTION.
The Senior Subordinated Notes will be redeemable, at the option of the
Company, in whole at any time or in part, at any time or from time to time, on
and after the Issue Date, at a Redemption Price equal to 101% of the principal
amount thereof, plus, in each case, accrued interest thereon to the Redemption
Date.
Section 3.08 Mandatory Purchase Upon Asset Sale.
As more particularly described in Section 4.18 of this Indenture, the
Senior Subordinated Notes shall be mandatorily purchased by the Company, in
whole or in part, upon certain Asset Sales.
ARTICLE FOUR
COVENANTS
Section 4.01 PAYMENT OF SENIOR SUBORDINATED NOTES.
(a) The Company shall punctually pay the principal of and interest on
the Senior Subordinated Notes on the dates and in the manner provided in the
Senior Subordinated Notes. An installment of principal of or interest on the
Senior Subordinated Notes shall be considered paid on the date it is due if the
Trustee or Paying Agent (other than the Company or its Subsidiary or Affiliate)
holds, prior to 10:00 AM New York City time, on that date U.S. Legal Tender
designated for and sufficient to pay all principal, premium and interest then
due.
(b) The Company shall pay interest on overdue principal and interest
on overdue installments of interest and premium, to the extent lawful, at a rate
equal to the rate of interest otherwise payable on the Senior Subordinated Notes
(after giving effect to any increase thereof pursuant to Section 4.04(a)
hereof), plus 2.00% per annum.
Section 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in New York, New York, the office or agency
required under Section 2.03 hereof. The Company shall give prior notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02.
Section 4.03 LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall cause each of its Subsidiaries not
to, directly or indirectly, make any Restricted Payment.
26
<PAGE>
Section 4.04 MINIMUM NET WORTH.
(a) If the Company's Net Worth at the end of any fiscal quarter is
equal to or less than the Minimum Net Worth, then, commencing on the date on
which the Company shall give the Trustee written notice of any such deficiency,
the Senior Subordinated Notes shall thereafter bear interest at the rate of 13%
per annum. The Senior Subordinated Notes shall bear interest at such rate until
the date (the "Deficiency Correction Date") on which the Company shall give the
Trustee written notice that its Net Worth, calculated as of the end of the
fiscal quarter immediately preceding, is greater than the Minimum Net Worth. The
Trustee shall notify the Holders that it has received such a notice from the
Company within 10 days after it receives such notice. Subject to Section 4.01(b)
and the first sentence of this paragraph, from and after the Deficiency
Correction Date, the Senior Subordinated Notes shall bear interest at the rate
specified therein. Any notice given to the Trustee pursuant to this paragraph
shall be accompanied by an Officers' Certificate confirming the information set
forth in such notice.
(b) The Company shall give the Trustee notice that its Net Worth is
equal to or less than the Minimum Net Worth at the end of any fiscal quarter in
which its Net Worth is equal to or less than such amount if such quarter is one
of the first three quarters of any fiscal year of the Company, within 45 days
after the end of such quarter and, if such quarter is the fourth quarter of any
fiscal year of the Company, within 90 days after the end of such fiscal year.
The Trustee shall notify the Holders that it has received such a notice from the
Company within 10 days after it receives such notice.
Section 4.05 CORPORATE EXISTENCE.
Except as otherwise provided by Article Five, the Company shall and
shall cause its Subsidiaries to do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each of its Subsidiaries in
accordance with the respective organizational documents of each such entity and
the rights (charter and statutory), licenses and franchises of the Company and
each of its Subsidiaries; provided, however, that the Company shall not be
required to preserve, with respect to itself, any right, license or franchise,
and with respect to any of its Subsidiaries, any such right, license or
franchise, or the corporate, partnership or other existence of such
Subsidiaries, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders.
Section 4.06 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall and shall cause its Subsidiaries to pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges (including withholding taxes and
any penalties, interest and additions to taxes) levied or imposed upon the
Company or any of its Subsidiaries or Properties of the Company or any of their
Subsidiaries and (ii) all lawful claims for labor, materials and supplies that,
if unpaid, might by law become a Lien upon the Property of the Company or any of
its Subsidiaries; provided, however, that the Company and its Subsidiaries shall
not be required to
27
<PAGE>
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim if either (a) the amount, applicability or validity thereof is
being contested in good faith by appropriate proceedings and an adequate reserve
has been established therefor to the extent required by GAAP or (b) the failure
to make such payment or effect such discharge (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of the Company and its Subsidiaries taken as a whole.
Section 4.07 MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall cause all Properties used or useful to the
conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereto, all as in their
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such Properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries taken as a whole; provided,
however, that nothing in this Section 4.07 shall prevent the Company or any of
its Subsidiaries from discontinuing the operation or maintenance of any of such
Properties, or disposing of any of them, if such discontinuance or disposal
would not be disadvantageous in any material respect to the Company and is
either (i) in the ordinary course of business, or (ii) otherwise permitted by
this Indenture.
(b) The Company shall provide or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company are adequate and appropriate for the conduct of the business of
the Company and its Subsidiaries in a prudent manner, with reputable insurers,
in such amounts, with such deductibles, and by such methods as shall be either
(i) consistent with past practices of the Company or the applicable Subsidiary
or (ii) customary, in the reasonable, good faith opinion of the Company, for
corporations similarly situated in the industry.
Section 4.08 COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company and each Guarantor shall deliver to the Trustee within
45 days after the end of each of the first three fiscal quarters of each fiscal
year of the Company, and within 120 days after the end of the last fiscal
quarter of each such fiscal year, an Officers' Certificate, complying with
Section 314(a)(4) of the TIA, stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal quarter (or, in the
case of the last fiscal quarter, the preceding fiscal year) has been made under
the supervision of the signing Officers with a view to determining whether each
has kept, observed, performed and fulfilled its obligations under this Indenture
and further stating, as to each such Officer signing such certificate, that to
the best of his knowledge the Company and its respective Subsidiaries during
such preceding fiscal quarter (or year, as appropriate) has kept, observed,
performed and fulfilled each and every such covenant and that no Default or
Event of Default under this Indenture, or event of default under the Senior
Secured Credit Facility or event of default under any other
28
<PAGE>
bond, debenture, note or other evidence of indebtedness of the Company or any of
its Subsidiaries, or under any mortgage, Indenture or other instrument (as that
term is used in Section 6.01(4) occurred during such quarter (or year, as
appropriate) or, if such signers do know of such an occurrence, the certificate
shall describe the occurrence and its status with particularity. The Officers'
Certificate shall disclose the Company's Net Worth at the end of such fiscal
quarter (or year, as appropriate) and shall also notify the Trustee should the
Company elect to change the manner in which it fixes its fiscal year end.
(b) The Company shall deliver to the Trustee within 120 days after the
end of each fiscal year a written statement by the Company's independent
certified public accountants stating (A) that their audit examination has
included a review of the terms of this Indenture and the Senior Subordinated
Notes as they relate to accounting matters, and (B) whether, in connection with
their audit examination, any Default has come to their attention and if such a
Default has come to their attention, specifying the nature and period of
existence thereof.
(c) The Company shall and shall cause each of its Subsidiaries to
deliver to the Trustee, forthwith upon becoming aware, and in any event within 5
days after the occurrence, of (i) any Default or Event of Default under this
Indenture; (ii) any event of default under the Senior Secured Credit Facility or
any event of default under any other bond, debenture, note or other evidence of
Indebtedness of the Company or any of its Subsidiaries, or under any mortgage,
indenture or other instrument (as that term is used in Section 6.01(4)); and
(iii) any decline in Net Worth such that the Net Worth is equal to or less than
the Minimum Net Worth at the end of any fiscal quarter or any subsequent
increase in Net Worth above such amount at the end of any fiscal quarter, an
Officers' Certificate specifying with particularity such event.
Section 4.09 COMPLIANCE WITH LAWS.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America and any other country in which the
Company or any Subsidiary conducts business, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except such as are being contested in good faith and by appropriate
proceedings and except for such noncompliances as would not in the aggregate
have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole.
Section 4.10 COMMISSION REPORTS.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file with
the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13 or 15(d) or any successor provision thereto if the Company were
subject thereto, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required to file them. The Company shall also (whether or not it is
required to file reports
29
<PAGE>
with the Commission), within 30 days of each Required Filing Date, file with the
Trustee copies of the annual reports, quarterly reports and other documents
(without exhibits) which the Company has filed or would have filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, any successor
provisions thereto or this covenant. The Trustee shall furnish copies of any
such reports and other documents to any Holder upon such Holder's written
request. The Company shall not be required to file any report with the
Commission if the Commission does not permit such filing. The Company shall also
comply with the other provisions of TIA Section 314(a).
Section 4.11 WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent that
each may lawfully do so) that it will not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive any
of the Company or the Guarantors from paying all or any portion of the principal
of or interest or premium on the Senior Subordinated Notes or the Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that each may lawfully do so) each of the Company and the Guarantors
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not and shall not permit any of its
Subsidiaries to (i) sell, lease, transfer, issue or otherwise dispose of any of
its Properties or assets or securities to, (ii) purchase any Property, assets or
securities from, (iii) make any Investment in, or (iv) enter into or suffer to
exist any contract or agreement with or for the benefit of, an Affiliate of the
Company or any of its Subsidiaries (an "Affiliate Transaction"), other than
Affiliate Transactions permitted under the following paragraph, unless the Board
of Directors of the Company, pursuant to a Board Resolution, reasonably and in
good faith determines that such Affiliate Transaction is fair to the Company or
such Subsidiary, as the case may be, and is on terms at least as favorable as
might reasonably have been obtainable at such time from an unaffiliated party.
All Affiliate Transactions (and each series of related Affiliate Transactions
which are similar or part of a common plan) involving aggregate payments or
other Property with a fair market value in excess of $50,000, shall be approved
by a majority of the disinterested members of the Board of Directors of the
Company, such approval to be evidenced by a Board Resolution stating that such
Board of Directors has determined that such transaction complies with the
foregoing provisions.
(b) The provisions of the foregoing paragraph shall not apply to (i)
reasonable and customary fees and compensation paid to, and indemnity (other
than for fraud or intentional misrepresentation) provided on behalf of,
officers, directors, employees or consultants of the Company or any of its
Subsidiaries, as determined in good faith by the Board of Directors of the
Company or any such Subsidiary or the senior management thereof, and (ii)
transactions
30
<PAGE>
exclusively between or among the Company and any of its Wholly-owned
Subsidiaries that are Guarantors as of the Issue Date or exclusively between or
among such Wholly-owned Subsidiaries that are Guarantors as of the Issue Date,
provided such transactions are not otherwise prohibited by this Indenture.
Section 4.13 LIMITATION ON INCURRENCES OF ADDITIONAL INDEBTEDNESS.
(a) Except as set forth in this Section 4.13, the Company will not,
and will not permit any of its Subsidiaries to, create, incur, assume or,
directly or indirectly, guarantee the payment of any Indebtedness, except that
the Company and its Subsidiaries may incur Indebtedness if at the time of such
event and after giving effect thereto on a pro forma basis the Company's Fixed
Charge Coverage Ratio for the four full fiscal quarters immediately preceding
such event, taken as one period (and calculated on the assumptions that (a) such
Indebtedness had been incurred on the first day of such four-quarter period, (b)
if applicable, the proceeds therefrom had been used to repay, on the first day
of such four-quarter period, Indebtedness actually repaid with such proceeds,
(c) in the case of acquisitions which occurred during such four-quarter period
or subsequent to such four-quarter period and/or prior to the date of the
transaction giving rise to the need to calculate the Fixed Charge Coverage Ratio
on a pro forma basis, on the assumption that such transaction occurred on the
first day of such four-quarter period, (d) in the case of the incurrence of any
Indebtedness during such four-quarter period or subsequent to such four-quarter
period and on or prior to the date of the transaction giving rise to the need to
calculate the Fixed Charge Coverage Ratio on a pro forma basis, on the
assumption that such transaction occurred on the first day of such four-quarter
period, and (e) in the case of any disposition of assets during such
four-quarter period (or subsequent to such four-quarter period and/or prior to
the date of the transaction giving rise to the need to calculate the Fixed
Charge Coverage Ratio) which would require pro forma financial information under
applicable accounting rules of the Commission or which results in the
assumption, repayment, defeasance or discharge of any Indebtedness, on the
assumptions that such disposition had occurred on the first day of such
four-quarter period with the appropriate adjustments with respect to such
disposition being included in such pro forma calculation, and that any
Indebtedness assumed, repaid, defeased or otherwise retired in connection with
such disposition was also retired on such date), would have been at least equal
to 2.0:1.0 if incurred during the period from the Issue Date through December
31, 2000 and 2.25:1.0 if incurred thereafter. For purposes of this Indenture,
Indebtedness incurred by any Person that is not the Company or a Subsidiary,
which Indebtedness is outstanding at the time such Person is acquired as a
Subsidiary by, becomes, or is merged into or consolidated with, such Subsidiary
or the Company, shall be deemed to have been incurred or issued, as the case may
be, at the time such Person is acquired as a Subsidiary by, becomes, or is
merged into or consolidated with, such Subsidiary or the Company. Any provision
contained in this Section 4.13(a) to the contrary notwithstanding, only those
fiscal quarters that begin on or after February 1, 2000, shall be considered in
making the calculations with respect to the Company's Fixed Charge Coverage
Ratio required hereby.
(b) (i) Notwithstanding Section 4.13(a), the Company and any of its
Wholly-owned Subsidiaries that are Guarantors may incur Indebtedness
pursuant to the Senior Secured Credit Facility in an aggregate principal
amount at any time outstanding not to exceed $45 million subject to
permanent reduction as provided in Section 4.18; and
31
<PAGE>
(ii) The Company shall promptly notify the Trustee in writing of
any reduction, refunding or refinancing of the Senior Secured Credit
Facility.
(c) Notwithstanding Section 4.13(a), the Company and its Subsidiaries
may incur Indebtedness evidenced by the Senior Subordinated Notes and the
Guarantee.
(d) Notwithstanding Section 4.13(a), the Company may incur
Indebtedness to any Guarantor, to the extent permitted by Sections 4.03 and
4.12.
(e) Notwithstanding Section 4.13(a), the Company and its Wholly-owned
Subsidiaries that are Guarantors may incur Indebtedness if such Indebtedness was
incurred in connection with the grant of Liens of the type described in clause
(xiii) of the definition of the term "Permitted Liens" and the transaction
pursuant to which such Indebtedness was incurred, and the amount of such
Indebtedness, satisfies and complies with all of the requirements of such clause
(xiii).
Section 4.14 LIMITATION ON PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or suffer to exist, or allow to become
effective any consensual Payment Restriction with respect to any of its
Subsidiaries, except for (i) any such restrictions contained in (a) the Senior
Secured Credit Facility and related documents as in effect on the Issue Date as
any such payment restriction may apply to any present or future Subsidiary, (b)
this Indenture, (c) secured Indebtedness otherwise permitted to be incurred or
to remain outstanding pursuant to Sections 4.13 and 4.15 hereof and that limits
the right of the debtor to dispose of the assets securing such Indebtedness;
(ii) customary provisions restricting subletting, transfer or assignment of any
lease or agreement entered into by the Company or a Subsidiary or the assets
(other than cash) subject thereto; (iii) customary pre-closing restrictions with
respect to the Company or a Subsidiary pursuant to an agreement that has been
entered into for the sale or disposition of all or a portion of the Capital
Stock or assets of the Company or such Subsidiary, which is not otherwise
prohibited by this Indenture; and (iv) restrictions contained in Indebtedness
incurred to refinance, refund, extend or renew Indebtedness referred to in
clause (i) above or amendments to the Indebtedness referred to in clause (i)
above; provided that the Payment Restrictions contained therein are not any more
restrictive than those provided for in such Indebtedness being refinanced,
refunded, extended or renewed.
Section 4.15 LIMITATION ON LIENS.
The Company shall not and shall not permit any of its Subsidiaries to
create, incur, assume or suffer to exist any Liens upon any of their respective
assets except for Permitted Liens.
Section 4.16 RESTRICTIONS ON SALE AND OWNERSHIP OF SUBSIDIARIES.
The Company shall not permit any of its Subsidiaries to issue any
Capital Stock or Partnership Interest (other than to the Company or to a
Wholly-owned Subsidiary that is a Guarantor as of the Issue Date) or permit any
Person (other than the Company or a
32
<PAGE>
Wholly-owned Subsidiary that is a Guarantor as of the Issue Date) to own any
Capital Stock or Partnership Interest of any Subsidiary of the Company, and the
Company shall not, and shall cause its Subsidiaries not to, own, acquire or
permit to exist any Subsidiary that is not a Wholly-owned Subsidiary and a
Guarantor, in each case other than (i) a sale of 100% of the Capital Stock or
Partnership Interests of a Subsidiary which is not otherwise prohibited by this
Indenture, and (ii) any Subsidiary (A) formed after the Issue Date, (B) in which
all Investments made or held by the Company and its Subsidiaries constitute
Permitted Business Investments made pursuant to and in compliance with the
definition of such term, and (C) the formation and capitalization of which does
not cause or constitute a Default or Event of Default hereunder.
Section 4.17 PAYMENTS FOR CONSENT.
Neither the Company nor any Affiliate of the Company shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Senior Subordinated Notes unless such consideration is paid to all
Holders that so consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
Section 4.18 LIMITATION ON ASSET SALES.
(a) The Company will not, and will not permit any of its Subsidiaries
to, consummate any Asset Sale unless (i) the Company or the applicable
Subsidiary receives consideration at the time of such Asset Sale (the "Asset
Sale Closing Date") at least equal to the Fair Market Value of the assets sold
or otherwise disposed of or issued (as determined in good faith by the Board of
Directors of the Company or, with respect to assets having a Fair Market Value
in excess of $5 million, an Independent Financial Advisor) and at least 90% of
the fair market value (as so determined) of the consideration so received by the
Company or such Subsidiary is in the form of cash; provided, however, that the
amount of (A) any liabilities of the Company or its Subsidiaries (other than
liabilities owed to the Company, any of its Subsidiaries or any of their
Affiliates) that are assumed by the transferee in any such transaction (as shown
on the Company's or such Subsidiary's most recent balance sheet) pursuant to a
customary novation agreement that irrevocably releases the Company and its
Subsidiaries from further liability and (B) any Cash Equivalents received by the
Company or any Subsidiary from such transferee that are immediately converted by
the Company or such Subsidiary into cash shall both be deemed to be cash for
purposes of this Section 4.18; and (ii) the Net Cash Proceeds received by the
Company or such Subsidiary from such Asset Sale are applied in compliance with
Section 4.18(b) hereof.
(b) (i) If the Company or any of its Subsidiaries engages in an Asset
Sale, the Company or such Subsidiary shall apply the Net Cash Proceeds thereof
in the following order:
(A) first, toward the payment of the Indebtedness (other than
Indebtedness under the Senior Secured Credit Facility or the Senior
Subordinated
33
<PAGE>
Notes) which is senior in right of payment to the payment of the
Senior Subordinated Notes; and
(B) second, toward the payment of the Indebtedness under the
Senior Secured Credit Facility; provided, however, that any such
payment shall result in a permanent reduction of the Lender's
commitment thereunder and a corresponding permanent reduction in the
maximum amount of Indebtedness permitted under Section 4.13(b)(i).
(ii) All Net Cash Proceeds not applied pursuant to Section 4.18(b)(i)
("Excess Proceeds") shall be delivered to the Trustee not later than 90
days after the applicable Asset Sale Closing Date (or 30 days after such
later date it is first deemed to be an Asset Sale), and shall be applied to
the purchase of Senior Subordinated Notes pursuant to a Net Proceeds
Purchase as set forth below. To the extent that any such Excess Proceeds
remain after the application of the Net Cash Proceeds described in Section
4.18(b)(i), the Company shall purchase Senior Subordinated Notes as
described in Section 4.18(c) (a "Net Proceeds Purchase") at a price equal
to 101% of the aggregate principal amount thereof, plus accrued interest to
the date of purchase, which shall in the aggregate equal the amount of
Excess Proceeds required by this Section 4.18 to be made available to
purchase Senior Subordinated Notes in a Net Proceeds Purchase.
(c) Notice of a Net Proceeds Purchase pursuant to this Section 4.18
shall be mailed, by first class mail, by the Company not more than 91 days after
the relevant Asset Sale Closing Date to all Holders at their last registered
addresses, with a copy to the Trustee. The notice shall specify a Redemption
Date chosen by the Company in compliance with the first sentence of Section 3.03
and shall contain all instructions and materials necessary to enable such
Holders to tender Senior Subordinated Notes pursuant to the Net Proceeds
Purchase and shall state the terms required to be stated in a notice of
redemption under Section 3.03.
On or before the Redemption Date, the Company shall have deposited
with the Paying Agent (to the extent not already held by the Paying Agent) U.S.
Legal Tender equal to the Excess Proceeds of the Asset Sale. Following the
Redemption Date, the Paying Agent shall promptly mail to the Holders of Senior
Subordinated Notes payment in an amount equal to the purchase price. The Company
will publicly announce the results of the Net Proceeds Purchase on or as soon as
practicable after the Redemption Date. For purposes of this Section 4.18, the
Trustee shall act as the Paying Agent.
Notwithstanding the foregoing, the Company need not initiate a
purchase offer under this Section 4.18 if the amount on deposit with the Trustee
is less than $1,000,000, but shall instead hold such lesser amount in trust in
an interest bearing account until the earlier of the next Redemption Date under
this Section 4.18 or the date upon which the Senior Subordinated Notes become
due and payable. The Company, however, may not credit any such amounts held by
the Trustee against any other provision of this Indenture.
(d) If at any time any non-cash consideration received by the Company
or any Subsidiary in connection with any Asset Sale is converted into or sold or
otherwise disposed of
34
<PAGE>
for cash, or if cash dividends or interest or other cash payments are received
with respect thereto, then such cash shall constitute Net Cash Proceeds for
purposes of this covenant and shall be applied in accordance with Section
4.18(b) as if received in an Asset Sale occurring on the date any such cash is
received.
Section 4.19 GUARANTEES BY SUBSIDIARIES.
The Company will cause each of its Subsidiaries, whether existing on
the Issue Date or thereafter formed or acquired, other than Subsidiaries formed
after the Issue Date pursuant to and in compliance with the requirements of
Section 4.16(ii), to become a Guarantor by complying with the procedures set
forth in Section 12.11 hereof and by executing and delivering a supplemental
indenture evidencing such Subsidiary's Guarantee. Neither the Company nor any
Guarantor shall be required to make a notation on the Senior Subordinated Notes
to reflect any such subsequent Guarantee.
Section 4.20 SUBSIDIARIES.
Except as permitted by Section 4.16(ii), the Company shall not, and
shall cause its Subsidiaries not to, own, acquire or permit to exist any
Subsidiary which is not a Wholly-owned Subsidiary and a Guarantor.
Section 4.21 PROHIBITION ON COMPANY AND GUARANTORS BECOMING AN INVESTMENT
COMPANY.
None of the Company or the Guarantors shall become an
"Investment Company" as defined in the Investment Company Act of 1940, as
amended.
Section 4.22 MAINTENANCE CAPITAL EXPENDITURES.
The Company shall not, and shall cause its Subsidiaries not to, make
Maintenance Capital Expenditures in any Yearly Period in an aggregate amount in
excess of the corresponding limit for such Yearly Period as set forth in the
second column below (or, in the case of a Yearly Period consisting of less than
365 days, a proportionally lower amount based upon the number of days in such
Yearly Period); provided, however, that at the end of each Yearly Period the
amounts set forth in the second column below for the following Yearly Period
shall be deemed to be (i) reduced in the event of one or more Asset Sales by the
Company or its Subsidiaries during the Yearly Period most recently ended by
multiplying such number by a fraction, the numerator of which is equal to the
Consolidated Assets of the Company on the last day of the Yearly Period most
recently ended, without considering the proceeds of the Asset Sales, and the
denominator of which is equal to the Consolidated Assets of the Company on the
last day of the Yearly Period immediately preceding the Yearly Period most
recently ended, and (ii) increased in the event of one or more acquisitions by
the Company or its Subsidiaries of tractors, trailers, vans or other equipment
used by the Company or any of its Subsidiaries in the operation of the Trism
Business by multiplying such number by a fraction, the numerator of which is
equal to the Consolidated Assets of the Company on the last day of such calendar
year and the denominator of which is equal to the Consolidated Assets of the
Company on the last day of the immediately preceding calendar year:
35
<PAGE>
<TABLE>
<CAPTION>
YEARLY PERIOD MAXIMUM MAINTENANCE
------------- -------------------
ENDING CAPITAL EXPENDITURES
------ --------------------
<S> <C>
December 31, 2000 $35,000,000
December 31, 2001 $35,000,000
December 31, 2002 $35,000,000
December 31, 2003 $35,000,000
December 31, 2004 $35,000,000
Maturity Date $ 3,355,000
</TABLE>
Section 4.23 LINE OF BUSINESS.
The Company will not, and will not permit any of its Subsidiaries to,
engage as a material part of its business in any business other than the TRISM
Business.
Section 4.24 LIMITATION ON ISSUANCE OF OTHER SUBORDINATED INDEBTEDNESS
SENIOR TO THE SENIOR SUBORDINATED NOTES.
(a) The Company will not create, incur, assume, guarantee or in any
other manner become liable with respect to any Indebtedness, other than the
Senior Subordinated Notes, that is subordinate in right of payment to any Senior
Indebtedness, unless such Indebtedness is permitted by Section 4.13 and
expressly by its terms is also subordinate or ranks PARI PASSU in right of
payment to the Senior Subordinated Notes.
(b) The Company will not permit any Subsidiary to create, incur,
assume, guarantee or in any other manner become liable with respect to any
Indebtedness, other than the Guarantees, that is subordinate in right of payment
to any Guarantor Senior Indebtedness, unless: (a) such Indebtedness is permitted
by Section 4.13 and expressly by its terms is also subordinate or ranks PARI
PASSU in right of payment to the Guarantees; or (b) such Indebtedness is
incurred by a Subsidiary that is a Guarantor in connection with the lease of
tractors, trailers, vans or other equipment used in the ordinary course of the
Trism Business.
Section 4.25 LIMITATION OF GUARANTEES BY SUBSIDIARIES.
The Company will not permit any Subsidiary, directly or indirectly, to
assume, guarantee or in any other manner become liable with respect to any
Indebtedness of the Company or any other Subsidiary unless (i) such assumption,
guarantee or other liability is permitted by Section 4.13, (ii) each such
Subsidiary which is not then a Guarantor simultaneously executes and delivers to
the Trustee a guarantee in favor of the Trustee, substantially in the form of
the Guarantee in Article Twelve (and, if requested by the Trustee, a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee), providing for the guarantee of payment of the Senior Subordinated
Notes by such Subsidiary and (iii) (a) if any such assumption, guarantee or
other liability of such Subsidiary is provided in respect of Senior
Indebtedness, the guarantee or other instrument provided by such Subsidiary in
respect of
36
<PAGE>
such Senior Indebtedness may be superior to the Guarantee, pursuant to
subordination provisions no less favorable than those contained in this
Indenture and (b) if such assumption, guarantee or other liability of such
Subsidiary is provided in respect of Subordinated Indebtedness, the guarantee or
other instrument provided by such Subsidiary in respect of such Subordinated
Indebtedness shall be subordinated to the Guarantee, pursuant to subordination
provisions not less favorable than those contained in this Indenture.
Notwithstanding the foregoing, any such Guarantee by a Subsidiary of
the Senior Subordinated Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon any sale or other
disposition (by merger or otherwise) to any Person which is not a Subsidiary or
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all of the assets of, such Subsidiary; PROVIDED, that (a) such
sale or disposition of such Capital Stock or assets is otherwise in compliance
with the terms of this Indenture and (b) such assumption, guarantee or other
liability of such Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 LIMITATION ON MERGER, ETC.
(a) Each of the Company, the Guarantors and their Subsidiaries shall
not in a single transaction or through a series of related transactions, (i)
consolidate with or merge with or into any other Person, or transfer (by lease,
license, assignment, sale or otherwise) all or substantially all of its
Properties and assets as an entirety or substantially as an entirety to another
Person or group of affiliated Persons or (ii) adopt a Plan of Liquidation.
(b) Notwithstanding Section 5.01(a), the Company may consolidate with
or merge with or into any other Person provided that:
(i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the
Company is merged or to which all or substantially all of the properties
and assets of the Company as an entirety or substantially as an entirety
are transferred (or, in the case of a Plan of Liquidation, any Person to
which assets are transferred) (the Company or such other Person being
hereinafter referred to as the "Surviving Person") shall be a corporation
organized and validly existing under the laws of the United States, any
State thereof or the District of Columbia, and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under
the Senior Subordinated Notes and this Indenture;
(ii) (A) immediately after and giving effect to such transaction
and the assumption of the obligations contemplated by clause (i) above and
the incurrence or anticipated incurrence of any Indebtedness to be incurred
in connection therewith, the Surviving Person shall have a Net Worth equal
to or greater than the Net Worth of the
37
<PAGE>
Company immediately preceding the transaction, (B) immediately before and
immediately after and giving effect to such transaction and the assumption
of the obligations contemplated by clause (i) above and the incurrence or
anticipated incurrence of any Indebtedness to be incurred in connection
therewith, no Default or Event of Default shall have occurred and be
continuing, (C) immediately after and giving effect to such transaction and
the assumption of the obligations contemplated by clause (i) above and the
incurrence or anticipated incurrence of any Indebtedness to be incurred in
connection therewith, all Guarantees of the Guarantors remain in full force
and effect and (D) immediately after and giving effect to such transaction
and the assumption of the obligations contemplated by clause (i) above and
the incurrence or anticipated incurrence of any Indebtedness to be incurred
in connection therewith, the ratio of the Surviving Company's Consolidated
Liabilities to the Surviving Company's Consolidated Assets shall be equal
to or less than the ratio of the Company's Consolidated Liabilities to the
Company's Consolidated Assets immediately prior to such transaction.
(iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or adoption and such supplemental indenture
comply with this Article Five, that the Surviving Person agrees to be bound
hereby, that such supplemental indenture and this Indenture, as modified by
such supplemental indenture, are enforceable against the Surviving Person
and the Guarantors in accordance with their respective terms, and that all
conditions precedent herein provided relating to such transaction have been
satisfied;
(iv) the Company shall have delivered to the Trustee a
certificate from its independent certified public accountants stating that
the Company has made the calculations required by clauses (ii)(A) and (D)
above in accordance with the terms of this Indenture; and
(v) none of the Company, any Guarantor or any of their respective
Subsidiaries or the Surviving Person would thereupon become obligated with
respect to any Indebtedness (including acquired indebtedness) nor would any
of its assets of Properties become subject to a Lien, unless such Person
could incur such Indebtedness (including acquired indebtedness) or create
such Lien under this Indenture (after giving effect to such Person being
bound by all the terms of this Indenture).
(c) Notwithstanding Section 5.01(a), a Wholly-owned Subsidiary of the
Company may merge into the Company or another Wholly-owned Subsidiary of the
Company that is a Guarantor and the Company need not preserve the existence of
one or more Guarantors and their Subsidiaries as permitted under Section 4.05 of
this Indenture.
(d) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the Properties and assets of one or more Subsidiaries, the
Capital Stock of which constitutes all or substantially all of the properties
and assets of a Person shall be deemed to be the transfer of all or
substantially all of the Properties and assets of a Person.
38
<PAGE>
Section 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of assets (including
pursuant to a Plan of Liquidation) in accordance with Section 5.01, the
successor Person formed by such consolidation or into which the Company or any
Guarantor or Subsidiary is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or Guarantor, as the case may be, under this Indenture (and shall
execute a supplemental indenture to that effect in accordance with Section
12.11) with the same effect as if such successor Person had been named as the
Company or Guarantor, as the case may be, herein; provided, however that the
Company and Guarantors shall not be released from the obligations and covenants
under this Indenture and the Senior Subordinated Notes.
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs under this Indenture if:
(1) the Company defaults in the payment of interest on any Senior
Subordinated Notes 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 (or
premium, if any, on) any Senior Subordinated Note when the same
becomes due and payable, at maturity, upon acceleration, redemption or
otherwise (including the failure to purchase (or offer to purchase)
Senior Subordinated Notes tendered pursuant to the requirements of
Section 4.18);
(3) the Company or any Guarantor fails to comply with any other
agreement or covenant contained in the Senior Subordinated Notes, this
Indenture or the Registration Rights Agreement, and the Default
continues for the period and after the notice specified below;
(4) there shall be a default under any bond, debenture or other
evidence of Indebtedness of the Company or any Guarantor having an
aggregate amount in excess of $3,000,000, or under any mortgage,
security agreement, indenture or other instrument under which there
may be issued or by which there may be secured or evidenced any such
Indebtedness, whether such Indebtedness now exists or shall hereafter
be created, if such default either (A) results from the failure to pay
principal or interest on any Indebtedness or (B) relates to an
obligation other than the obligation to pay principal or interest on
any Indebtedness and results in the holder or holders of such
Indebtedness causing such Indebtedness to become due prior to its
stated maturity;
(5) any Guarantee required to be in full force and effect by the
terms of this Indenture ceases to be in full force and effect or is
declared null and void
39
<PAGE>
or otherwise not enforceable against any Guarantor in accordance with
its terms, or any of the Guarantors repudiates its obligations under
its Guarantee or denies that it has any further liability under the
Guarantee or gives notice to such effect (other than by reason of the
termination of this Indenture or the release of any such Guarantee in
accordance with this Indenture); or any Guarantor repudiates its
obligations under its Guarantee of the Senior Subordinated Notes or if
a final judicial determination is made that such Guarantee is not
enforceable against any Guarantor in accordance with its terms;
(6) the Company or any Guarantor pursuant to or within the
meaning of any Bankruptcy Law:
(a) admits in writing its inability to pay its debts
generally as they become due;
(b) commences a voluntary case or proceeding;
(c) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding;
(d) consents to the appointment of a Custodian of it or for
all or substantially all of its property;
(e) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it;
(f) makes a general assignment for the benefit of its
creditors; or
(g) takes any corporate action to authorize or effect any of
the foregoing;
(7) a court of competent jurisdiction enters a judgment, decree
or order under any Bankruptcy Law that is for relief against the
Company or any Guarantor, in an involuntary case or proceeding which
shall (A) approve a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or any Guarantor,
(B) appoint a Custodian of the Company or any Guarantor, or for
substantially all of its Property, or (C) order the winding-up or
liquidation of its affairs, and in each case the judgment, order or
decree remains unstayed and in effect for 60 days;
(8) any warrant of attachment is issued against any property of
the Company or any Guarantor having a value of at least $3 million,
which warrant is not released, stayed or bonded against within 60 days
after service of process with respect thereto;
40
<PAGE>
(9) any final judgments or orders not covered by insurance (which
insurance has been issued by a financially sound insurer that is not
an Affiliate of the Company and that has not disclaimed or threatened
to disclaim coverage) for the payment of money which individually or
in the aggregate at any one time exceeds $3 million shall be rendered
against the Company or any Guarantor or any of their respective
Subsidiaries by a court of competent jurisdiction and shall remain
unstayed, undischarged or unbonded for 60 days after judgment becomes
final and nonappealable; or
(10) there shall be any failure to procure and maintain property
and liability insurance in accordance with the provisions of Section
4.07 continuing, in the case of failure to maintain such insurance,
until the earlier of (y) 30 days after notice to the Company or any of
its Subsidiaries or the Trustee of the lapse or cancellation of such
insurance, and (z) the date such lapse or cancellation is effective as
to the Trustee.
A Default under clause (3) above (other than any Default under
Sections 4.03, 4.04, 4.12, 4.13, 4.14, 4.15, 4.16, 4.18, 4.19, 4.20, 4.21, 4.22,
4.23, 4.24, 4.25 and 5.01, which Defaults shall be Events of Default with the
notice specified in this paragraph but without the passage of time specified in
this paragraph) or under clause (10) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount
of the outstanding Senior Subordinated Notes notify the Company and the Trustee,
of the Default, and the Company does not cure the Default within 30 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." Such notice shall
be given by the Trustee if so requested by the Holders of at least 25% in
principal amount of the Senior Subordinated Notes then outstanding. When a
Default is cured, it ceases.
Section 6.02 ACCELERATION.
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company) occurs and is continuing,
the Trustee may, by notice to the Company, or the Holders of at least 25% in
principal amount of the Senior Subordinated Notes then outstanding may, by
written notice to the Company and the Trustee, and the Trustee shall, upon the
request of such Holders, declare the aggregate principal amount of the Senior
Subordinated Notes outstanding, together with accrued interest thereon to the
date of payment, to be due and payable and, upon any such declaration, the same
shall become and be due and payable; PROVIDED that so long as any Indebtedness
is outstanding under the Senior Secured Credit Facility, such declaration shall
not be effective until the earlier of (i) five days after delivery of such
declaration of acceleration of the Senior Subordinated Notes to the Senior
Representative by the Trustee and (ii) the declaration of acceleration of the
Indebtedness under the Senior Secured Credit Facility. If an Event of Default
specified in Section 6.01(6) or (7) occurs with respect to the Company, all
unpaid principal and accrued interest on the Senior Subordinated Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. Upon
payment of such principal amount, interest, and premium, if any, all of the
Company's
41
<PAGE>
obligations under the Senior Subordinated Notes and this Indenture, other than
obligations under Section 7.07, shall terminate. The Holders of a majority in
principal amount of the Senior Subordinated Notes then outstanding by notice to
the Trustee may rescind an acceleration and its consequences if (i) all existing
Events of Default, other than the non-payment of the principal of the Senior
Subordinated Notes which has become due solely by such declaration of
acceleration, have been cured or waived, (ii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest and overdue
principal, which has become due otherwise than by such declaration of
acceleration, has been paid, (iii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction, and (iv) the Company
has paid or caused to be paid to the Trustee all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and all other amounts due to the
Trustee under Section 7.07.
Section 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or the Guarantee by such appropriate private or
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce such rights, including seeking recourse against any Guarantor pursuant
to the terms of the Guarantee, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy, or to enforce
any other proper remedy, subject however to Section 6.05. No recovery of any
such judgment upon any property of the Company or any Guarantor shall affect or
impair any rights, powers or remedies of the Trustee or the Holders.
The Trustee may maintain a proceeding even if it does not possess any
of the Senior Subordinated Notes 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 to the extent permitted by law.
Section 6.04 WAIVER OF PAST DEFAULTS.
Subject to Sections 6.02, 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Senior Subordinated Notes by notice to the
Trustee may waive an existing Default or Event of Default and its consequences,
except a Default in the payment of principal of or interest on any Senior
Subordinated Note as specified in clauses (1) and (2) of Section 6.01. When a
Default or Event of Default is waived, it is cured and ceases.
Section 6.05 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the outstanding
Senior Subordinated Notes may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. Subject to Section 7.01, however, the Trustee may
refuse to follow any direction that conflicts with any law
42
<PAGE>
or this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of another Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 6.06 LIMITATION ON SUITS.
Subject to Section 6.07, a Securityholder may not pursue any remedy
with respect to this Indenture or the Senior Subordinated Notes unless:
(1) the Holder gives to the Trustee notice of a continuing Event
of Default;
(2) the Holder or Holders of at least 25% in principal amount of
the outstanding Senior Subordinated Notes 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 expense to
be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holder or Holders of a majority
in principal amount of the outstanding Senior Subordinated Notes do
not give the Trustee a direction which, in the opinion of the Trustee,
is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, premium, if any, and interest on
a Senior Subordinated Note, on or after the respective due dates expressed in
such Senior Subordinated Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
Section 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest specified
in clause (1) or (2) of Section 6.01 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 Senior Subordinated Notes for the whole
amount of principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such interest
is
43
<PAGE>
lawful, interest on overdue installments of interest, in each case at the rate
per annum borne by the Senior Subordinated Notes 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, and any other amounts due the Trustee under Section
7.07.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07) and the Securityholders allowed in
any judicial proceedings relating to the Company or any other obligor upon the
Senior Subordinated Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Securityholder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Senior Subordinated Notes or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company
or any Guarantor directly without the Trustee, to Holders for their
collection costs;
Third: to Holders for amounts due and unpaid on the Senior
Subordinated Notes for principal, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Senior Subordinated Notes for
principal, premium, if any, and interest, respectively; and
Fourth: to the Company or relevant Guarantor.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10.
44
<PAGE>
Section 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Senior Subordinated Notes.
Section 6.12 EVENT OF DEFAULT FROM WILLFUL ACTION.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company or any
Guarantor with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Senior
Subordinated Notes pursuant to Section 3.07 hereof, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law.
Section 6.13 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or wrongfully taken Senior Subordinated
Notes in Section 2.07, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 6.14 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy arising upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this
Indenture, or by law to the Trustee or to the Holders may be exercised from time
to time, and as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed, subject to
the terms and conditions hereof.
45
<PAGE>
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise thereof 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:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01; and
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its 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. The Trustee shall be entitled to the protection
afforded by TIA Section 315(d)(3).
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
46
<PAGE>
Section 7.02 RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document;
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of Counsel,
which shall conform to Sections 13.04 and 13.05. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion;
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care;
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence;
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
(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, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(g) Any permissive right or power available to the Trustee under this
Indenture shall not be construed to be a mandatory duty or obligation;
(h) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate; and
(i) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Senior Subordinated Notes unless either (1)
a Trust Officer assigned to the Corporate Trust Department of the Trustee (or
any successor division or department of the Trustee) shall have actual knowledge
of such Default or Event of Default or (2) written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or by any
Holder of the Senior Subordinated Notes.
47
<PAGE>
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Subordinated Notes and may otherwise deal with the
Company or any Guarantor, or their respective Affiliates, with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture, the Senior Subordinated Notes or the Guarantee, it shall not be
accountable for the Company's use of the proceeds from the Senior Subordinated
Notes, and it shall not be responsible for any statement in the Senior
Subordinated Notes other than the Trustee's certificate of authentication.
Section 7.05 NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 90 days after such Default or Event
of Default occurs. Except in the case of a Default or an Event of Default in
payment of principal of, or interest on, any Senior Subordinated Note, including
the failure to make a Net Proceeds Purchase, the Trustee may withhold the notice
if and so long as its Board of Directors, the executive committee of its Board
of Directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, beginning with May 15, 2000, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Securityholder a brief report dated as of such May 15 that complies with
TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b)(2)
and 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the Commission and each stock
exchange, if any, on which the Senior Subordinated Notes are listed in
accordance with TIA Section 313(d). The Company shall notify the Trustee if the
Senior Subordinated Notes become listed on any stock exchange and of any
delisting thereof.
Section 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder as
agreed by the Trustee and the Company. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all
48
<PAGE>
reasonable disbursements, expenses and advances incurred or made by it. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it except for such actions to the
extent caused by any negligence or bad faith on its part, arising out of or in
connection with the administration of this trust and its rights or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
written consent. The Company need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Senior Subordinated Notes on all assets
held or collected by the Trustee, in its capacity as Trustee, except assets held
in trust to pay principal of or interest on particular Senior Subordinated
Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6), (7) or (8) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligations of the Company under this Section 7.07 shall survive
the resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture.
The Trustee shall comply with the provisions TIA Section 313(b)(2) to
the extent applicable.
Section 7.08 REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Senior Subordinated Notes may
remove the Trustee by so notifying the Company and the Trustee and may appoint a
successor trustee with the Company's 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 becomes incapable of acting.
49
<PAGE>
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Senior Subordinated Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
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 transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Senior
Subordinated Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee shall have a combined capital
and surplus of at least $100 million (or be a member or subsidiary of a bank
holding system with aggregate combined capital and surplus of at least $100
million) as set forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
50
<PAGE>
ARTICLE EIGHT
SUBORDINATION
Section 8.01 SENIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Senior
Subordinated Note, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
Eight, the Indebtedness represented by the Senior Subordinated Notes and the
payment of the principal of, premium, if any, and interest on each and all of
the Senior Subordinated Notes are hereby expressly made subordinate and subject
in right of payment as provided in this Article Eight to the prior payment in
full in cash or cash equivalents of all Senior Indebtedness.
This Article Eight shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold
Senior Indebtedness; and such provisions are made for the benefit of the holders
of Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
The provisions of this Article Eight shall not be applicable from and
after the date of Legal Defeasance or Covenant Defeasance pursuant to Sections
9.02 or 9.03, respectively, of this Indenture.
Section 8.02 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets or liabilities of the Company, then and in any
such event:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or cash equivalents of all amounts due on or in respect
of all Senior Indebtedness, or provision shall be made for such payment, before
the Holders of the Senior Subordinated Notes are entitled to receive any payment
or distribution of any kind or character (other than in Permitted Junior
Securities) on account of principal of, premium, if any, or interest on the
Senior Subordinated Notes; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (excluding Permitted
Junior Securities) by set-off or otherwise, to which the Holders or the Trustee
would be entitled but for the provisions of this Article Eight shall be paid by
the liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, to the
51
<PAGE>
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 8.02, the Trustee or the Holder of any Senior Subordinated Notes
shall have received any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, in respect of
principal, premium, if any, and interest on the Senior Subordinated Notes before
all Senior Indebtedness is paid in full or payment thereof provided for, then
and in such event such payment or distribution (excluding Permitted Junior
Securities) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Five shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Section 8.02 if the Person formed by such consolidation or the surviving entity
of such merger or the Person which acquires by conveyance, transfer or lease
such properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance, transfer or lease,
comply with the conditions set forth in Article Five.
Section 8.03 SUSPENSION OF PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
(a) Unless Section 8.02 shall be applicable, upon (1) the occurrence
of a Payment Default and (2) receipt by the Trustee from the Company or the
holders of Senior Indebtedness of written notice of such occurrence, then no
payment or distribution of any assets of the Company of any kind or character
(excluding Permitted Junior Securities) shall be made by the Company and no
holder of the Subordinated Notes shall accept or receive any direct or indirect
payment by set off or otherwise for or on account of principal of, or premium,
if any, or interest on the Senior Subordinated Notes or on account of the
purchase or redemption or other acquisition of the Senior Subordinated Notes
unless and until such Payment Default shall have been cured or waived or shall
have ceased to exist (as evidenced by a written acknowledgement of the Senior
Representative) or such Senior Indebtedness shall have been discharged or paid
in full or payment thereof provided for, after which the Company shall resume
making any and all required payments in respect of the Senior Subordinated
Notes, including any missed payments.
(b) Unless Section 8.02 shall be applicable, upon (1) the occurrence
of a Covenant Default and (2) receipt by the Trustee from the Senior
Representative of written notice of such occurrence, no payment or distribution
of any assets of the Company of any kind or character (excluding Permitted
Junior Securities) may be made by the Company on account of any principal of,
premium, if any, or interest on the Senior Subordinated Notes or on account of
52
<PAGE>
the purchase or redemption or other acquisition of the Senior Subordinated Notes
for a period (the "Payment Blockage Period") commencing on the date of receipt
by the Trustee of such notice and ending on (subject to any blockage of payments
that may then be in effect under Section 8.03(a)) the earliest of (x) 179 days
in the case of Indebtedness under the Senior Secured Credit Facility, and 119
days in the case of other Designated Senior Indebtedness, after the receipt of
such written notice by the Trustee (provided the Designated Senior Indebtedness
with respect to which such Covenant Default shall have occurred shall
theretofore have not been accelerated), (y) the date on which such Covenant
Default shall have been cured or waived or shall have ceased to exist (as
evidenced by a written acknowledgement of the Senior Representative initiating
the Payment Blockage Period) or such Designated Senior Indebtedness shall have
been discharged or paid in full or payment thereof provided for or (z) the date
on which such Payment Blockage Period shall have been terminated by written
notice to the Company or the Trustee from the Senior Representative initiating
such Payment Blockage Period, or the holders of at least a majority in principal
amount of such issue of Designated Senior Indebtedness, after which, in the case
of clause (x), (y) or (z), the Company shall resume making any and all required
payments in respect of the Senior Subordinated Notes, including any missed
payments. Notwithstanding any other provision of this Indenture, only one
Payment Blockage Period may be commenced with respect to the Senior Subordinated
Notes within any 365-day period and no Covenant Default with respect to
Designated Senior Indebtedness which existed or was continuing on the date of
the commencement of any Payment Blockage Period will be, or can be, made the
basis for the commencement of a second Payment Blockage Period, whether or not
within a period of 365 consecutive days, unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days. In no
event shall a Payment Blockage Period extend beyond 179 days from the date of
the receipt of the notice referred to in clause (2) hereof.
(c) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Senior Subordinated
Notes prohibited by the foregoing provisions of this Section 8.03, then and in
such event such payment shall be held in trust for the benefit of the Lenders or
other holders of Senior Indebtedness at the time outstanding and shall promptly
be paid over and delivered forthwith to the Senior Representative or other
representative of the holders of the Designated Senior Indebtedness or the
holders of Senior Indebtedness, as applicable, or as a court of competent
jurisdiction shall direct.
Section 8.04 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article Eight, elsewhere in this Indenture
or in any of the Senior Subordinated Notes shall prevent the Company, at any
time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Company referred to in Section
8.02 or under the conditions described in Section 8.03, from making payments at
any time of principal of, premium, if any, or interest on the Senior
Subordinated Notes.
Section 8.05 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full in cash or cash equivalents of all
Senior Indebtedness, the Holders of the Senior Subordinated Notes shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and interest on the
Senior
53
<PAGE>
Subordinated Notes shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Senior Subordinated Notes or
the Trustee would be entitled except for the provisions of this Article Eight,
and no payments over pursuant to the provisions of this Article Eight to the
holders of Senior Indebtedness by Holders of the Senior Subordinated Notes or
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Senior Subordinated Notes, be deemed
to be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
Section 8.06 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article Eight are intended solely for the
purpose of defining the relative rights of the Holders of the Senior
Subordinated Notes on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article Eight or elsewhere in this
Indenture or in the Senior Subordinated Notes is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Senior Subordinated Notes, the obligation of
the Company, which is absolute and unconditional, to pay to the Holders of the
Senior Subordinated Notes the principal of, premium, if any, and interest on the
Senior Subordinated Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Senior Subordinated Notes and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Senior Subordinated Notes from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Eight of the
holders of Senior Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Company referred to in Section
8.02, to receive, pursuant to and in accordance with such Section, cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder, or (2) under the conditions specified in Section 8.03, to prevent any
payment prohibited by such Section or enforce their rights pursuant to Section
8.03(c).
Section 8.07 TRUSTEE TO EFFECTUATE SUBORDINATION PROVISIONS.
Each Holder of a Senior Subordinated Note by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Eight and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the Indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved.
Section 8.08 NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired
54
<PAGE>
by any act or failure to act on the part of the Company or by any act or failure
to act, in good faith, by any such holder, or by any non-compliance by the
Company with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof any such Holder may have or be otherwise charged with.
(b) Without limiting the generality of Section 8.08(a), the holders of
Senior Indebtedness may, at any time and from time to time, without the consent
of or notice to the Trustee or the Holders of the Senior Subordinated Notes,
without incurring responsibility to the Holders of the Senior Subordinated Notes
and without impairing or releasing the subordination provided in this Article
Eight or the obligations hereunder of the Holders of the Senior Subordinated
Notes to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
Person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other Person; PROVIDED, HOWEVER, that in no event shall any such
actions limit the right of the Holders of the Senior Subordinated Notes to take
any action to accelerate the maturity of the Senior Subordinated Notes pursuant
to Article Six of this Indenture or to pursue any rights or remedies hereunder
or under applicable laws if the taking of such action does not otherwise violate
the terms of this Article Eight.
Section 8.09 NOTICE TO TRUSTEE.
(a) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Senior Subordinated Notes. Notwithstanding the
provisions of this Article Eight or any provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the Senior
Subordinated Notes, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section 8.09(a) at least three Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Senior Subordinated Notes), then, anything
herein contained to the contrary notwithstanding but without limiting the rights
and remedies of the holders of Senior Indebtedness or any trustee, fiduciary or
agent thereof, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within three Business Days prior to such date; nor shall the Trustee be charged
with knowledge of the curing of any such default or the elimination of the act
or condition preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect. Notwithstanding anything to
the contrary set forth above, no written notice shall be necessary for the
provisions of Section 8.01 to be effective.
55
<PAGE>
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and the Company by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee, fiduciary or agent
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor); provided, however,
that failure to give such notice to the Company shall not affect in any way the
ability of the Trustee to rely on such notice. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Eight, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article Eight, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Section 8.10 Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article Eight, the Trustee and the Holders of the Senior Subordinated
Notes shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating Trustee, custodian, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered to the Trustee or to
the Holders of Senior Subordinated Notes, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Eight, provided that the foregoing
shall apply only if such court has been fully apprised of the provisions of this
Article Eight.
Section 8.11 RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Eight with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article Eight shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07.
Section 8.12 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting under this Indenture, the term
"Trustee" as used in this Article Eight shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Eight in addition to or in place of
56
<PAGE>
the Trustee; provided, however, that Section 8.11 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 8.13 NO SUSPENSION OF REMEDIES.
Nothing contained in this Article Eight shall limit the right of the
Trustee or the Holders of Senior Subordinated Notes to take any action to
accelerate the maturity of the Senior Subordinated Notes pursuant to Article Six
of this Indenture or to pursue any rights or remedies hereunder or under
applicable law, succeed to the rights, if any, under this Article Eight of the
Holders, from time to time, of Senior Indebtedness.
Section 8.14 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Eight, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Article Eight against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and the Trustee
shall not be liable to any holder of Senior Indebtedness if it shall mistakenly
pay over or deliver to Holders, the Company or any other Person moneys or assets
to which any holder of Senior Indebtedness shall be entitled by virtue of this
Article Eight or otherwise.
Section 8.15 AMENDMENTS
The provisions of this Aritcle Eight shall not be amended or modified
without the written consent of the holders of all Senior Indebtedness, which
written consent shall not be unreasonably withheld, delayed or conditioned;
provided, however, that the holders of the Senior Indebtedness may withhold such
consent in their sole discretion if the proposed amendment or modification would
materially adversely affect their priority with respect to the Indebtedness
represented by the Senior Notes.
ARTICLE NINE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 9.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by
a Board Resolution, at any time, elect to have either Section 9.02 or 9.03
hereof be applied to all outstanding Senior Subordinated Notes upon compliance
with the conditions set forth below in this Article Nine.
Section 9.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 9.01 hereof of the option
applicable to this Section 9.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 9.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Senior
Subordinated Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Senior Subordinated Notes, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 9.05 and the
other Sections of this Indenture referred to in (i) through (iv) below, and to
have satisfied all its other obligations under such Senior Subordinated Notes
and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of holders of such outstanding Senior
Subordinated Notes to receive, solely from the trust fund
57
<PAGE>
described in Section 9.05, payments in respect of the principal of, premium, if
any, and interest on such Senior Subordinated Notes when such payments are due,
(ii) the Company's obligations with respect to the Senior Subordinated Notes
under Article Two and Section 4.02 hereof, (iii) the rights, powers, trust,
duties and immunities of the Trustee, and the Company's obligations in
connection therewith and (iv) this Article Nine. Subject to compliance with this
Article Nine, the Company may exercise its option under this Section 9.02
notwithstanding the prior exercise of its option under Section 9.03 hereof.
Section 9.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 9.01 hereof of the
option applicable to this Section 9.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 9.04 hereof, be released
from its obligations under the covenants contained in Sections 4.03, 4.04, 4.12,
4.13, 4.14, 4.15, 4.16, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24 and 4.25 and
Sections 5.01(b)(ii)(A) and 5.01(b)(ii)(D) hereof, and the provisions of
Articles Five, Eight and Twelve shall not apply, with respect to the outstanding
Senior Subordinated Notes on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"), and the Senior Subordinated
Notes shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Senior Subordinated Notes, 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
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Senior Subordinated Notes shall be unaffected thereby.
Section 9.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 9.02 or 9.03 hereof to the outstanding Senior Subordinated Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee or Paying
Agent, in trust, for the benefit of the Holders, U.S. Legal Tender, U.S.
Government Obligations which, through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one Business Day before the due date for any payment, money in an
amount, or a combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants,
expressed in a written certification thereof delivered to the Trustee, to pay
the principal of, premium, if any, and interest on the Senior Subordinated Notes
on the stated date for payment thereof or on the applicable redemption date, as
the case may be, of such principal or installment of principal of, premium, if
any, or interest on the Senior Subordinated Notes;
58
<PAGE>
(b) in the case of an election under Section 9.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date 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 of Counsel shall confirm that, the Holders of the Senior
Subordinated Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 9.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the Senior
Subordinated Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Senior Subordinated Notes pursuant to this
Article Nine concurrently with such incurrence) or insofar as Sections 6.01(6)
and 6.01(7) hereof are concerned, shall have occurred at any time in the period
ending on the 91st day after the date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a Default under, this Indenture, or a
default under the Senior Indebtedness or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the trust funds established pursuant to this Article
Nine will not be subject to any rights of holders of Senior Indebtedness,
including, without limitations, those arising under Article Eight of this
Indenture, and to the effect that after the 91st day following the deposit, such
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with;
59
<PAGE>
(i) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the TIA (assuming
for the purpose of this clause (i) that all Senior Subordinated Notes are in
default within the meaning of the TIA); and
(j) such Legal Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such act or exempt from registration thereunder.
Section 9.05 DEPOSITED U.S. LEGAL TENDER AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 9.06 hereof, all U.S. Legal Tender and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
9.05, the "Trustee") pursuant to Section 9.04 hereof in respect of the
outstanding Senior Subordinated Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Senior Subordinated Notes and
this Indenture, to the payment, either directly or through any Paying Agent, as
the Trustee may determine, to the Holders of such Senior Subordinated Notes of
all sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such U.S. Legal Tender and U.S. Government Obligations 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. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 9.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Senior Subordinated Notes.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any U.S. Legal Tender or U.S. Government Obligations held by it as
provided in Section 9.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 9.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 9.06 REPAYMENT TO THE COMPANY.
Any U.S. Legal Tender or U.S. Government Obligations deposited with
the Trustee or any Paying Agent, in trust for the payment of the principal of,
premium, if any, or interest on any Senior Subordinated Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Senior Subordinated Note shall thereafter, as an unsecured general
60
<PAGE>
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in THE
NEW YORK TIMES and THE WALL STREET JOURNAL (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 9.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 9.02 or 9.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Senior
Subordinated Notes, and the Guarantors' obligations under this Indenture and the
Guarantee, shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.02 or 9.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such U.S. Legal Tender and U.S. Government
Obligations in accordance with Section 9.02 or 9.03 hereof, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Senior Subordinated Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Senior Subordinated Notes to receive such payment from
the U.S. Legal Tender and U.S. Government Obligations held by the Trustee or
Paying Agent after payment in full of the Senior Subordinated Notes.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVER
Section 10.01 WITHOUT CONSENT OF HOLDERS OF SENIOR SUBORDINATED NOTES.
Notwithstanding Section 10.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Senior
Subordinated Notes without the consent of any Holder of a Senior Subordinated
Note:
(a) to evidence the succession of another Person to the Company and
the Guarantors and the assumption by such successor of the covenants and
Obligations of the Company under this Indenture and contained in the Senior
Subordinated Notes and of the Guarantors contained in this Indenture and the
Guarantees;
(b) to add to the covenants of the Company, for the benefit of
Holders, or to surrender any right or power conferred upon the Company or the
Guarantors by this Indenture;
(c) to add any additional Events of Default;
(d) to provide for uncertificated Senior Subordinated Notes in
addition to or in place of certificated Senior Subordinated Notes;
61
<PAGE>
(e) to evidence and provide for the acceptance of appointment under
this Indenture by the successor Trustee;
(f) to secure the Senior Subordinated Notes and/or the Guarantees;
(g) to cure any ambiguity, to correct or supplement any provision in
this Indenture which may be inconsistent with any other provision herein or to
add any other provisions with respect to matters or questions arising under this
Indenture, PROVIDED that such actions will not materially and adversely affect
the interests of Holders;
(h) to add or release any Guarantor pursuant to the terms of this
Indenture; or
(i) to comply with the requirements of the Commission to effect or
maintain the qualification of the Indenture under the TIA.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 10.07 hereof,
the Trustee shall join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 10.02 WITH CONSENT OF HOLDERS OF SENIOR SUBORDINATED NOTES.
Except as provided below in this Section 10.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture and the Senior
Subordinated Notes may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the Senior
Subordinated Notes then outstanding, and, subject to Sections 7.04 and 7.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or, interest on
the Senior Subordinated Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Senior Subordinated Notes may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Senior Subordinated Notes.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Senior Subordinated Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 10.07 hereof, the
Trustee shall join with the Company and the Guarantors in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
62
<PAGE>
It shall not be necessary for the consent of the Holders of Senior
Subordinated Notes under this Section 10.02 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section 10.02
becomes effective, the Company shall mail to the Holders of Senior Subordinated
Notes affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 7.04 and 7.07 hereof,
the Holders of a majority in aggregate principal amount of the Senior
Subordinated Notes then outstanding may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Senior
Subordinated Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Senior Subordinated Notes held
by a non-consenting Holder):
(a) reduce the principal amount of Senior Subordinated Notes whose
Holders must consent to an amendment, supplement or waiver of any provision of
this Indenture or the Senior Subordinated Notes;
(b) reduce the principal of or change the fixed maturity of any Senior
Subordinated Note or alter the provisions with respect to the redemption of
Senior Subordinated Notes pursuant to Article Three of this Indenture or alter
the provisions, including the purchase price payable, with respect to
repurchases of the Senior Subordinated Notes pursuant to Section 4.18 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Senior Subordinated Note;
(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest on the Senior Subordinated Notes or that
resulted from a failure to comply with Section 4.18 hereof (except a rescission
of acceleration of the Senior Subordinated Notes by the Holders of at least a
majority in aggregate principal amount of the Senior Subordinated Notes and a
waiver of the payment default that resulted from such acceleration);
(e) make the principal of, or the interest on, any Senior Subordinated
Note payable in any manner other than that stated in this Indenture and the
Senior Subordinated Notes on the Issue Date;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Senior Subordinated Notes
to receive payments of principal of or interest on the Senior Subordinated
Notes;
(g) waive a redemption payment with respect to any Senior Subordinated
Note;
(h) alter the ranking of the Senior Subordinated Notes relative to
other Indebtedness of the Company or the Guarantors;
63
<PAGE>
(i) make any change in the amendment and waiver provisions of this
Indenture or the Senior Subordinated Notes;
(j) impair the right of any Holder to receive payment of principal of
and interest on such Holder's Senior Subordinated Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on or
with respect to such Holder's Senior Subordinated Notes;
(k) release any Guarantor from its Guarantee, except as provided
herein; or
(l) make any change in Sections 7.04 or 7.07 or modify any of the
provisions of this Section 10.02 (except to increase any percentage set forth
herein).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Senior Subordinated Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 10.07 hereof, the
Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Senior
Subordinated Notes under this Section 10.02 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
Section 10.03 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
Ten, 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 Senior Subordinated Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. After a
supplemental indenture becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 10.03.
Section 10.04 COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the Senior
Subordinated Notes shall comply with the TIA.
Section 10.05 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Senior Subordinated Note or portion of a Senior Subordinated Note
that evidences the same debt as the consenting Holder's Senior Subordinated
Note, even if notation of the consent is not made on
64
<PAGE>
any Senior Subordinated Note. However, any such Holder or subsequent Holder may
revoke the consent as to his Senior Subordinated Note or portion of his Senior
Subordinated Note by notice to the Trustee or the Company received before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Senior Subordinated Notes have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
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 last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(a) through (l) of Section 10.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Senior Subordinated Note who has
consented to it, and every subsequent Holder of a Senior Subordinated Note or
portion of a Senior Subordinated Note that evidences the same debt as the
consenting Holder's Senior Subordinated Note; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Senior Subordinated Note, on or after the
respective due dates expressed in such Senior Subordinated Note, or to bring
suit for the enforcement of any such payment on or after such respective dates
without the consent of such Holder.
Section 10.06 NOTATION ON OR EXCHANGE OF SENIOR SUBORDINATED NOTES.
If an amendment, supplement or waiver changes the terms of a Senior
Subordinated Note, the Trustee may require the Holder of the Senior Subordinated
Note to deliver it to the Trustee. The Trustee may place an appropriate notation
on the Senior Subordinated Note about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Senior Subordinated Note shall issue and the Trustee shall
authenticate a new Senior Subordinated Note that reflects the changed terms. Any
such notation or exchange shall be made at the sole cost and expense of the
Company.
Section 10.07 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES.
The Trustee shall sign any supplemental Indenture authorized pursuant
to this Article Ten if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. Neither the Company
nor a Guarantor may sign a supplemental Indenture until the Board of Directors
of such Person approves it. In executing any supplemental indenture, the Trustee
shall be entitled to receive indemnity reasonably satisfactory to it and to
receive and (subject to Section 7.01) shall be fully protected in relying upon,
in addition to the
65
<PAGE>
documents required by Section 10.01 or 10.02, an Officers' Certificate and an
Opinion of Counsel stating that:
(a) such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution, delivery and
performance of such supplemental indenture have been satisfied;
(b) the Company and the Guarantors have all necessary corporate power
and authority to execute and deliver the supplemental indenture and that the
execution, delivery and performance of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company and the Guarantors;
(c) the execution, delivery and performance of the supplemental
indenture do not conflict with, or result in the breach of or constitute a
default under any of the terms, conditions or provisions of (i) this Indenture,
(ii) the charter documents and by-laws of the Company or any Guarantor, or (iii)
any material agreement or instrument to which the Company or any Guarantor is
subject and of which such counsel is aware;
(d) to the knowledge of legal counsel writing such Opinion of Counsel,
the execution, delivery and performance of the supplemental indenture do not
conflict with, or result in the breach of any of the terms, conditions or
provisions of (i) any law or regulation applicable to the Company or any
Guarantor, or (ii) any material order, writ, injunction or decree of any court
or governmental instrumentality applicable to the Company or any Guarantor;
(e) such supplemental indenture has been duly and validly executed and
delivered by the Company and the Guarantors, and this Indenture together with
such supplemental indenture constitutes a legal, valid and binding obligations
of the Company and the Guarantors enforceable against the Company and the
Guarantors, as applicable, in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and general equitable
principles (whether considered in a proceeding at law or in equity); and
(f) this Indenture together with such amendment or supplement complies
with the TIA.
ARTICLE ELEVEN
MEETINGS OF SECURITYHOLDERS
Section 11.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Securityholders may be called at any time and from time
to time pursuant to the provisions of this Article Eleven for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive or to consent to the waiving of any
Default or Event of
66
<PAGE>
Default hereunder and its consequences, or to take any other action authorized
to be taken by Securityholders pursuant to any of the provisions of Article Six;
(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver pursuant to the
provisions of Section 10.02; or
(d) to take any other action (i) authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the Senior
Subordinated Notes under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate in
connection with the administration of this Indenture.
Section 11.02 MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Securityholders to take
any action specified in Section 11.01, to be held at such time and at such place
in The City of New York, New York or elsewhere as the Trustee shall determine.
Notice of every meeting of Securityholders, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed by the Trustee, first-class postage prepaid, to the
Company and to the Holders at their last addresses as they shall appear on the
registration books of the Registrar not less than 10 nor more than 60 days prior
to the date fixed for a meeting.
Any meeting of Securityholders shall be valid without notice if the
Holders of all Senior Subordinated Notes then outstanding are present in person
or by proxy, or if notice is waived before or after the meeting by the Holders
of all Senior Subordinated Notes outstanding, and if the Company, the Guarantors
and the Trustee are either present by duly authorized representatives or have,
before or after the meeting, waived notice.
Section 11.03 CALL OF MEETINGS BY THE COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of not less than 10% in aggregate principal amount of the Senior
Subordinated Notes then outstanding shall have requested the Trustee to call a
meeting of Securityholders to take any action specified in Section 11.01, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Company or the
Holders of Senior Subordinated Notes in the amount above specified may determine
the time and place in The City of New York, New York or elsewhere for such
meeting and may call such meeting for the purpose of taking such action, by
mailing or causing to be mailed notice thereof as provided in Section 11.02.
67
<PAGE>
Section 11.04 WHO MAY ATTEND AND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Securityholders, a Person
shall (a) be a registered Holder of one or more Senior Subordinated Notes, or
(b) be a Person appointed by an instrument in writing as proxy for the
registered Holder or Holders of Senior Subordinated Notes. The only Persons who
shall be entitled to be present or to speak at any meeting of Securityholders
shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company, the Guarantors and their respective counsel.
Section 11.05 REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE MEETING;
VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any action by or
any meeting of Securityholders, in regard to proof of the holding of Senior
Subordinated Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, and submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think appropriate.
Such regulations may fix a record date and time for determining the Holders of
record of Senior Subordinated Notes entitled to vote at such meeting, in which
case those and only those Persons who are Holders of Senior Subordinated Notes
at the record date and time so fixed, or their proxies, shall be entitled to
vote at such meeting whether or not they shall be such Holders at the time of
the meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 11.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Senior Subordinated Notes represented at the meeting
and entitled to vote.
At any meeting each Securityholder or proxy shall be entitled to one
vote for each $1,000 principal amount of Senior Subordinated Notes held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Senior Subordinated Notes challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman may adjourn any such meeting if he is unable to determine whether any
Holder or proxy shall be entitled to vote at such meeting. The chairman of the
meeting shall have no right to vote other than by virtue of Senior Subordinated
Notes held by him or instruments in writing as aforesaid duly designating him as
the proxy to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 11.02 or
Section 11.03 may be adjourned from time to time by vote of the Holders of a
majority in aggregate principal amount of the Senior Subordinated Notes
represented at the meeting and entitled to vote, and the meeting may be held as
so adjourned without further notice.
68
<PAGE>
Section 11.06 VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Senior Subordinated Notes or of their
representatives by proxy and the principal amount of the Senior Subordinated
Notes voted by the ballot. The permanent chairman of the meeting shall appoint
two inspectors of votes, who cast proxies at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of the Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts, setting forth a copy of the notice of the meeting and showing that such
notice was mailed as provided in Section 11.02 or published as provided in
Section 11.03. The record shall be signed and verified by the affidavits of the
permanent chairman and the secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 11.07 EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY NOT BE
HINDERED OR DELAYED BY CALL OF MEETING.
Nothing contained in this Article Eleven shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Securityholders or
any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Securityholders under any of the provisions of
this Indenture or of the Senior Subordinated Notes.
ARTICLE TWELVE
GUARANTEE OF SENIOR SUBORDINATED NOTES
Section 12.01 UNCONDITIONAL GUARANTEE.
(a) Each Guarantor hereby unconditionally, jointly and severally,
guarantees as a primary obligor and not as a surety (such guarantee to be
referred to herein as the "Guarantee") to each Holder of a Senior Subordinated
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, the Senior Subordinated Notes and the obligations of the
Company hereunder or thereunder, including that: (i) the principal of and
premium, if any, and interest on the Senior Subordinated Notes will be promptly
paid in full when due, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise and interest on the overdue principal, if
any, and interest on any interest to the extent lawful, of the Senior
Subordinated Notes and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder (including, without limitation, all
redemption obligations under Section 3.07 and all purchase obligations under
Section 4.18) will be promptly paid in full
69
<PAGE>
or performed all in accordance with the terms hereof and thereof; and (ii) in
case of any extension of time of payment or renewal of any Senior Subordinated
Notes or of any such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration or otherwise, subject, however, to the limitations set forth in
Section 12.05. Each Guarantor hereby agrees that its obligations hereunder shall
be unconditional, irrespective of the validity, regularity or enforceability of
the Senior Subordinated Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Senior Subordinated
Notes with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in the Senior Subordinated Notes, this Indenture and this
Guarantee. If any Securityholder or the Trustee is required by any court or
otherwise to return to the Company or any Guarantor or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or
such Securityholder, this Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
(b) Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Securityholder or the Trustee held for payment of the Guarantees.
(c) Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any
Securityholder in enforcing any rights under this Article Twelve.
Section 12.02 SENIORITY OF GUARANTEE.
The obligations of each Guarantor to the Holders of Senior
Subordinated Notes and to the Trustee pursuant to the Guarantee and this
Indenture are, subject to Article Eight and Section 12.09 expressly senior
unsecured obligations of such Guarantor.
70
<PAGE>
Section 12.03 SEVERABILITY.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 12.04 RELEASE OF A GUARANTOR.
If no Default or Event of Default exists or would exist under this
Indenture upon the sale or disposition (or the sale or disposition of
substantially all of the assets) of a Guarantor to a Person which is not a
Subsidiary of the Company, which sale or disposition is otherwise in compliance
with the terms of this Indenture, including, without limitation, Section 4.18,
such Guarantor shall be deemed released from all its obligations under this
Article Twelve and its Guarantee without any further action required on the part
of the Trustee or any Holder. The Trustee shall deliver an appropriate
instrument evidencing such release upon receipt of a request by the Company
accompanied by an Opinion of Counsel and an Officers' Certificate certifying as
to the compliance with this Section 12.04. Any Guarantor not so released remains
liable for the full amount of principal of and premium, if any, and interest on
the Senior Subordinated Notes and other obligations as provided in this Article
Twelve.
Section 12.05 LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and by its acceptance hereof each Holder confirms that
it is the intention of all such parties that the guarantee by such Guarantor
pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law. To
effectuate the foregoing intention, the Holders and each Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 12.07, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent conveyance or fraudulent transfer
under any applicable Bankruptcy Law or not otherwise being void, voidable or
unenforceable under any applicable Bankruptcy Law.
Section 12.06 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the Senior
Subordinated Notes shall prevent any consolidation or merger of a Guarantor with
or into the Company or another Person that is a Guarantor as of the Issue Date
or shall prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety, to the Company or another Person that
is a Guarantor as of the Issue Date.
(b) Except as set forth in Articles Four and Five hereof, nothing
contained in this Indenture or in any of the Senior Subordinated Notes shall
prevent any consolidation or merger of a Guarantor with or into a corporation or
corporations other than the Company or
71
<PAGE>
another Person that is a Guarantor as of the Issue Date (whether or not
affiliated with such Guarantor), or successive consolidations or mergers in
which a Guarantor or its successor or successors shall be a party or parties, or
shall prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety, to a corporation other than the
Company or another Person that is a Guarantor as of the Issue Date (whether or
not affiliated with such Guarantor); provided, however, that, subject to
Sections 12.04 and 12.06(a), (i) such transaction does not violate any covenants
set forth in Articles Four and Five hereof, (ii) immediately after such
transaction, and giving effect thereto, no Default or Event of Default shall
have occurred as a result of such transaction and be continuing, (iii) upon any
such consolidation, merger, sale or conveyance, the Guarantee set forth in this
Article Twelve, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by such
Guarantor, shall be expressly assumed (in the event that the Guarantor is not
the surviving corporation in the merger), by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee, by the Person
formed by such consolidation, or into which the Guarantor shall have merged, or
by the Person that shall have acquired such property, and (iv) the Company shall
have delivered to the Trustee an officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale or conveyance and
such indenture comply with this Indenture, that the Person formed by or
surviving such transaction agrees to be bound hereby, and that all conditions
precedent herein provided to such transaction have been satisfied. In the case
of any such consolidation, merger, sale or conveyance and upon the assumption by
the successor Person, by supplemental indenture executed and delivered to the
Trustee and satisfactory in form to the Trustee of the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.
Section 12.07 CONTRIBUTION.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Senior Subordinated Notes or any other
Guarantor's obligations with respect to the Guarantee.
Section 12.08 WAIVER OF SUBROGATION.
Each Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under the Guarantee and this Indenture, including, without limitation, any right
of subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder of Senior Subordinated Notes
against the Company, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without limitation,
the right to take
72
<PAGE>
or receive from the Company, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to any Guarantor in violation
of the preceding sentence and the Senior Subordinated Notes shall not have been
paid in full, such amount shall have been deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Holders
of the Senior Subordinated Notes, and shall forthwith be paid to the Trustee for
the benefit of such Holders to be credited and applied upon the Senior
Subordinated Notes, whether matured or unmatured, in accordance with the terms
of this Indenture. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that the waiver set forth in this Section 12.08 is knowingly made in
contemplation of such benefits.
Section 12.09 SUBORDINATION OF GUARANTEE.
Each Guarantor covenants and agrees, and each Holder of a Senior
Subordinated Note, by his acceptance thereof, likewise covenants and agrees that
the Guarantee in Section 12.01 hereof is hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Guarantor Senior
Indebtedness of such Guarantor, in the same manner and to the same extent as the
Senior Subordinated Notes are subordinated to Senior Indebtedness pursuant to
Article Eight hereof; PROVIDED, HOWEVER, that, subject to Section 4.24 above,
the Indebtedness of each Guarantor represented by the Guarantee in Section 12.01
shall in all respects rank prior to all existing and future Indebtedness of such
Guarantor that is expressly subordinated to Guarantor Senior Indebtedness.
Section 12.10 EXECUTION OF GUARANTEE.
To evidence the Guarantee to the Securityholders specified in Section
12.01, the Guarantors hereby agree to execute the notation of guarantee in
substantially the form of EXHIBIT A recited to be endorsed on each Senior
Subordinated Note ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Guarantee set forth in Section 12.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Senior Subordinated Note a notation of such Guarantee. Each such notation of
guarantee shall be signed on behalf of each Guarantor by two Officers, or an
Officer and an Assistant Secretary or one Officer shall sign and one Officer or
an Assistant Secretary (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to such notation of
guarantee prior to the authentication of the Senior Subordinated Note on which
it is endorsed, and the delivery of such Senior Subordinated Note on which it is
endorsed, and the delivery of such Senior Subordinated Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of
such notation of guarantee on behalf of such Guarantor. Such signatures upon the
notation of guarantee may be by manual or facsimile signature of such officers
and may be imprinted or otherwise reproduced on the notation of guarantee, and
in case any such officer who shall have signed the notation of guarantee shall
cease to be such officer before the Senior Subordinated Note on which such
notation of guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Company, such Senior Subordinated Note
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed the notation of guarantee had not ceased to be such officer of
the Guarantor.
73
<PAGE>
Section 12.11 GUARANTEE UNCONDITIONAL, ETC.
Upon failure of payment when due of any obligations covered by the
Guarantee for whatever reason, each Guarantor will be obligated to pay the same
immediately. Each Guarantor hereby agrees that its obligations hereunder shall
be continuing, absolute and unconditional, irrespective of: the recovery of any
judgment against the Company or any Guarantor; any extension, renewal,
settlement, compromise, waiver or release in respect of any obligation of the
Company under this Indenture or any Senior Subordinated Note, by operation of
law or otherwise; any modification or amendment of or supplement to this
Indenture or any Senior Subordinated Note; any change in the corporate
existence, structure or ownership of the Company or any Guarantor, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Company or any Guarantor or any of their assets or any resulting release or
discharge of any obligation of the Company or any Guarantor contained in this
Indenture or any Senior Subordinated Note; the existence of any claim, set-off
or other rights which any Guarantor may have at any time against the Company,
any Guarantor, the Trustee, any Securityholder or any other Person, whether in
connection herewith or any unrelated transactions, provided, that nothing herein
shall prevent the assertion of any such claim by separate suit or compulsory
counterclaim; any invalidity or unenforceability relating to or against the
Company for any reason of this Indenture or any Senior Subordinated Note, or any
provision of applicable law or regulation purporting to prohibit the payment by
the Company of the principal, premium, if any, or interest or any Senior
Subordinated Note or any other Guarantee; or any other act or omission to act or
delay of any kind by the Company or any Guarantor, the Trustee, any
Securityholder or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantors' obligations hereunder. Each Guarantor's obligations
hereunder shall remain in full force and effect until this Indenture shall have
terminated and the principal of and interest on the Senior Subordinated Notes
and all other Guarantees shall have been paid in full. If at any time any
payment of the principal of or interest on any Senior Subordinated Notes or any
other payment in respect of any Guarantees is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, each Guarantor's obligations hereunder with respect to
such payment shall be reinstated as though such payment had been due but not
made at such time, and this Article Twelve, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor
irrevocably waives any and all rights to which it may be entitled, by operation
of law or otherwise, upon making any payment hereunder to be subrogated to the
rights of the payee against the Company with respect to such payment or
otherwise to be reimbursed, indemnified or exonerated by the Company in respect
thereof.
Section 12.12 ADDITIONAL GUARANTORS.
Any Person that was not a Guarantor on the date of this Indenture may
become a Guarantor by executing and delivering to the Trustee (a) a supplemental
indenture in form and substance satisfactory to the Trustee, which subjects such
Person to the provisions of this Indenture as a Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized
and executed by such Person and that such supplemental indenture, and this
Indenture as so supplemented, each constitutes the legal, valid, binding and
74
<PAGE>
enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be acceptable to
the Trustee in its discretion). The Guarantee of each Person described in this
Section 12.12 shall apply to all Senior Subordinated Notes theretofore or
thereafter executed and delivered, notwithstanding any failure of such Senior
Subordinated Notes to contain a notation of such Guarantee thereon.
Section 12.13 WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive each such Guarantor from
performing its Guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) each Guarantor
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01 TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by, or with another provision included in this Indenture
by operation of, Sections 3.10 to 3.18, inclusive of the TIA, such imposed
duties or incorporated provision shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that can be so modified
or excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or excluded, as the case may be.
Section 13.02 NOTICES.
Except as otherwise expressly provided herein, all notices, requests
and demands to or upon the respective parties hereto to be effective shall be in
writing (including by telecopy or telex), and shall be deemed to have been duly
given or made when delivered by hand, or five days after being deposited in the
United States mail, postage prepaid, or, in the case of telex notice, when sent,
answer-back received, or in the case of telecopy notice, when sent, or in the
case of a nationally recognized overnight courier service, one business day
after deposit with such nationally recognized overnight courier service, to the
address set forth below or to such other address as may be designated by any
party in a written notice to the other parties hereto:
75
<PAGE>
IF TO THE COMPANY OR GUARANTORS:
TRISM, Inc.
4174 Jiles Road
Kennesaw, Georgia 30144
Attention: James G. Overley
Facsimile: (770) 795-4619
WITH, IN THE CASE OF ANY NOTICE UNDER ARTICLE SIX, A COPY TO:
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attention: Alan B. Hyman, Esq.
Facsimile: (212) 969-2900
IF TO THE TRUSTEE:
U.S. Bank Trust National Association
U.S. Bank Trust Center
180 East 5th Street
St. Paul, Minnesota 55101
Attention: Rick Prokosch
Facsimile: (651) 244-0089
Any notice or communication shall also be so mailed to any Person
described in TIA Section 3.13(c), to the extent required by the TIA. Failure to
mail notice or communication to a Holder or any defect in it shall not effect
its sufficiently with respect to other Holders.
Section 13.03 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Senior Subordinated Notes. The Company, the Guarantors, the Trustee, the
Registrar and any other Person shall have the protection of TIA Section 312(c).
Section 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company, upon request, shall furnish to the
Trustee, to the extent required by this Indenture or the TIA:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
76
<PAGE>
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents. Any certificate
or opinion of an officer of the Company or any Guarantor may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, and may
state that it is so based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or such Guarantor stating that the information with respect to such
factual matters is in the possession of the Company or such Guarantor, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate of opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 13.05 STATEMENTS REQUIRED IN A CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Persons making such certificate or opinion
have read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Persons, they have made
such examination or investigation as is necessary to enable them to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Persons,
such condition or covenant has been satisfied.
77
<PAGE>
Section 13.06 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage of Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such specified percentage
of Holders in person or by agents duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are received by the Trustee and, where it is
hereby expressly required, by the Company and the Guarantors. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 7.01 and 7.02) conclusive in favor of the Trustee, the
Company and the Guarantors, if made in the manner provided in this Section
13.06(a).
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient, including the execution
of such instrument or writing without more.
(c) The ownership, principal amount and serial numbers of Senior
Subordinated Notes held by any Person, and the date of holding the same, shall
be proved by the most recent securityholder list made available to the Trustee
pursuant to Section 2.05.
(d) If the Company shall solicit from the Holders of Senior
Subordinated Notes any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant to
Board Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to the
first solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Senior Subordinated Notes have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Senior Subordinated Notes shall be
computed as of such record date; PROVIDED that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become pursuant to the provisions of this Indenture not later than
eleven months after the record date.
78
<PAGE>
(e) Except to the extent otherwise expressly provided in this
Indenture, any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Senior Subordinated Note shall bind
every future Holder of the same Senior Subordinated Note and the Holder of every
Senior Subordinated Note issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Senior Subordinated Note.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action with regard to any particular Senior Subordinated Note
may do so with regard to all or any part of the principal amount of such Senior
Subordinated Note or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any different part of such
principal amount.
Section 13.07 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions; PROVIDED that no such rule shall
conflict with the terms of this Indenture or the TIA.
Section 13.08 LEGAL HOLIDAYS.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, are not required to be open. If a payment date is a Legal
Holiday at such place, payment may be made at such place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
Section 13.09 GOVERNING LAW.
THIS INDENTURE AND THE SENIOR SUBORDINATED NOTES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 13.10 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES.
By the execution and delivery of this Indenture or any amendment or
supplement hereto, each of the Company and the Guarantors (i) acknowledges that
it has, by separate written instrument, designated and appointed CT Corporation
System (the "Process Agent") currently located at 1633 Broadway, New York, New
York 10019, as its authorized agent upon which process may be served in any
suit, action or proceeding with respect to, arising out of, or relating to, this
Indenture, the Guarantees, or the Senior Subordinated Notes or brought under
U.S. federal or state securities laws, which suit, action or proceeding may be
instituted in any U.S. federal or state court located in The City of New York,
New York, and acknowledges that the Process Agent has accepted such designation,
(ii) irrevocably submits to the jurisdiction of any such court in any such
79
<PAGE>
suit, action or proceeding and irrevocably waives, to the fullest extent that it
may effectively and lawfully do so, any obligation to the laying of venue of any
such suit, action or proceeding and the defense of an inconvenient forum to the
maintenance of any such suit action or proceeding in such court, and (iii)
agrees that service of process upon the Process Agent shall be deemed in every
respect effective service of process upon the Company in any such suit, action
or proceeding. The Company and the Guarantors further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments as may be necessary to continue such designation and appointment of
the Process Agent in full force and effect so long as this Indenture shall be in
full force and effect; provided that the Company may and shall (to the extent
the Process Agent ceases to be able to be served on the basis contemplated
herein), by written notice to the Trustee, designate such additional or
alternative agents for service of process under this Section 13.10 that (i)
maintains an office located in the Borough of Manhattan, The City of New York in
the State of New York, (ii) are either (a) counsel for the Company or (b) a
corporate service company which acts as agent for service of process for other
Persons in the ordinary course of its business and (iii) agrees to act as agent
for service of process in accordance with this Section 13.10. Such notice shall
identify the name of such agent for process and the address of such agent for
process in the Borough of Manhattan, The City of New York, State of New York.
Upon the request of any Holder of a Senior Subordinated Note, the Trustee shall
deliver such information to such Holder. Notwithstanding the foregoing, there
shall, at all times, be at least one agent for service of process for the
Company and each Guarantor appointed and acting in accordance with this Section
13.10.
To the extent that the Company or any Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
Property, each of the Company and the Guarantors hereby irrevocably waives such
immunity in respect of its Obligations under this Indenture, the Guarantees and
the Senior Subordinated Notes, to the extent permitted by law.
Section 13.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 13.12 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as such,
of the Company, or any Guarantor shall not have any liability for any
obligations of the Company or any Guarantor under the Senior Subordinated Notes
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Securityholder by accepting a Senior
Subordinated Note waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Senior
Subordinated Notes.
80
<PAGE>
Section 13.13 SUCCESSORS.
All agreements of the Company and each Guarantor in this Indenture and
the Senior Subordinated Notes shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 13.14 COUNTERPART ORIGINALS.
All parties may sign any number of copies of this Indenture in
separate counterparts. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
Section 13.15 SEVERABILITY.
In case any one or more of the provisions in this Indenture or in the
Senior Subordinated Notes shall be held invalid, illegal or unenforceable, in
any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
Section 13.16 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Remainder of Page Intentionally Left Blank]
81
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the date first written
above.
TRISM, INC.
Attest: -------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
Attest: --------------------------- By: -------------------------------------
------------------- Name: ----------------------------------
Title: ---------------------------------
TRISM SECURED TRANSPORTATION, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
TRISM HEAVY HAUL, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
E. L. POWELL & SONS TRUCKING CO., INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
82
<PAGE>
TRI-STATE MOTOR TRANSIT CO.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
TRISM SPECIALIZED CARRIERS, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
AERO BODY AND TRUCK EQUIPMENT, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
TRISM SPECIAL SERVICES, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
DIABLO SYSTEMS, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
TRISM EASTERN, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
TRISM TRANSPORT, INC.
83
<PAGE>
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
TRISM TRANSPORT SERVICES, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
TRISM LOGISTICS, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
TRISM EQUIPMENT, INC.
Attest: --------------------------- By: -------------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
84
<PAGE>
Exhibit A
[FORM OF SENIOR SUBORDINATED NOTE]
TRISM, INC.
12% Senior Subordinated Note Due 2005
No. -------------------- $--------------------
TRISM, INC., a Delaware corporation ("Company", which term includes
any successor corporation), for value received promises to pay to
- ------------------- or registered assigns, the principal sum of
- ----------------- Dollars, on February 4, 2005 and to pay interest thereon in
cash semiannually in arrears at the rate of 12% per annum on March 15 and
September 15 of each year until the principal hereof is paid or made available
for payment. Interest on this Senior Subordinated Note will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from September 15, 1999. Interest accruing from September 15, 2004, shall be
paid in cash at maturity. Payment of principal, premium, if any, and interest
shall be made in the manner and subject to the terms set forth in provisions
appearing on the reverse hereof, which provisions, in their entirety, shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Senior Subordinated
Note to be signed manually or by facsimile by its duly authorized officers.
Dated: February 4, 2005
TRISM, INC.
Attest: --------------------------- By: -----------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Senior Subordinated Notes described in the within-mentioned
Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: ------------------------------------
Authorized Signatory
<PAGE>
TRISM, INC.
12% Senior Subordinated Note Due 2005
1. INTEREST. TRISM, INC., a Delaware corporation ("the Company"), promises
to pay interest on the principal amount of this Senior Subordinated Note at the
rate per annum shown above. The interest rate is subject to adjustment in
certain circumstances as described herein. The Company will pay interest in
cash, semi-annually on March 15 and September 15 of each year (each, an
"Interest Payment Date"), commencing March 15, 2000, to Holders of record on the
immediately preceding March 1, and September 1 (each, a "Record Date"). Interest
on the Senior Subordinated Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from September 15,
1999. Interest accruing from September 15, 2004, shall be paid in cash at
maturity. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest on overdue principal and interest on overdue
installments of interest and premium, to the extent lawful, at a rate equal to
the rate of interest otherwise payable on the Senior Subordinated Notes (after
giving effect to any increase thereof as described in Section 4.04 of the
Indenture) plus 2.00% per annum.
2. METHOD OF PAYMENT. The Company shall pay interest on the Senior
Subordinated Notes to the Persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date even
if the Senior Subordinated Notes are canceled on registration of transfer or
registration of exchange after such Record Date. The Company shall pay principal
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of Federal funds, or
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address. This Senior Subordinated Note is an obligation of the
Company and shall be governed by, and entitled to the benefits of the Indenture
(as such term is defined below) and shall be subject to the terms of the
Indenture (including the guarantee provisions) and shall rank pari passu with
and be subject to the same terms (including the rate of interest from time to
time payable thereon) as the other Senior Subordinated Notes issued thereunder
(except, as the case may be, with respect to the issuance date and aggregate
principal amount).
3. SUBORDINATION. The indebtedness evidenced by the Senior Subordinated
Notes is, to the extent and in the manner provided in the Indenture, subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness as defined in the Indenture, and this Senior Subordinated Note is
issued subject to such provisions. Each Holder of this Senior Subordinated Note,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee his attorney-in-fact for such purpose;
PROVIDED, HOWEVER, that the indebtedness evidenced by this Senior Subordinated
Note shall cease to be so subordinate and subject in right
<PAGE>
of payment upon any defeasance of this Senior Subordinated Note referred to in
Section 9.02 or 9.03 of the Indenture.
4. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust National
Association (the "Trustee") will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
5. INDENTURE AND GUARANTEES. The Company issued the Senior Subordinated
Notes under an Indenture, dated as of February 4, 2000 (as amended or
supplemented from time to time, the "Indenture"), among the Company, the
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Senior Subordinated
Notes 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 Sections
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Senior Subordinated Notes
are subject to all such terms, and Holders of Senior Subordinated Notes are
referred to the Indenture and the TIA for a statement of such terms. The Senior
Subordinated Notes are senior unsecured obligations of the Company limited in
aggregate principal amount to $30,000,000. Payment on each Senior Subordinated
Note is guaranteed on a senior unsecured basis, jointly and severally, by the
Guarantors pursuant to Article Twelve of the Indenture.
6. OPTIONAL REDEMPTION. The Senior Subordinated Notes may be redeemed in
whole, at any time, or from time to time in part, at the option of the Company,
at a Redemption Price equal to 101% of the principal amount thereof, plus, in
each case, accrued interest to the Redemption Date.
7. 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
Senior Subordinated Notes to be redeemed at such Holder's registered address.
Senior Subordinated Notes in denominations larger than $1,000 may be redeemed in
part.
Except as set forth in the Indenture, from and after any Redemption Date,
if monies for the redemption of the Senior Subordinated Notes called for
redemption shall have been deposited with the Paying Agent for redemption on
such Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Senior Subordinated Notes called for redemption will cease
to bear interest and the only right of the Holders of such Senior Subordinated
Notes will be to receive payment of the Redemption Price.
8. MANDATORY REPURCHASE. Subject to the provisions of Section 4.18 of the
Indenture, the Company is required to apply the Net Cash Proceeds from certain
Asset Sales to the mandatory purchase of the Senior Subordinated Note, at a
purchase price equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase.
9. DENOMINATIONS; TRANSFER; EXCHANGE. The Senior Subordinated Notes are in
registered form, without coupons. A Holder shall register the transfer of or
exchange Senior
<PAGE>
Subordinated Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Senior Subordinated Notes or
portions thereof selected for redemption.
10. PERSONS DEEMED OWNERS. The registered Holder of a Senior Subordinated
Note shall be treated as the owner of it for
all purposes.
11. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agents will pay the
money back to the Company at its request. After that, all liability of the
Trustee and such Paying Agents with respect to such money shall cease.
12. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company at any time
deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and premium, if any, and interest on the
Senior Subordinated Notes to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Senior Subordinated Notes
(including the financial covenants, but excluding its obligation to pay the
principal of and premium, if any, and interest on the Senior Subordinated
Notes).
13. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the
Indenture or the Senior Subordinated Notes may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate principal
amount of the Senior Subordinated Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or supplement the Indenture
or the Senior Subordinated Notes to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated Senior Subordinated Notes in
addition to or in place of certificated Senior Subordinated Notes, provide for
additional Guarantors pursuant to Section 4.19 of the Indenture or otherwise,
provide for successors pursuant to Article Five or Section 12.06 of the
Indenture, or comply with any requirements of the Commission in connection with
the qualification of the Indenture under the TIA, provide for the appointment of
a successor Trustee pursuant to Section 7.08 or make any other change that does
not adversely affect the legal rights of any Holder of a Senior Subordinated
Note.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations on the
ability of the Company and its Subsidiaries to, among other things, pay
dividends to stockholders of the Company or make certain other restricted
payments, incur additional Indebtedness or Liens, enter into transactions with
Affiliates, make payments in respect of its Capital Stock and merge or
consolidate with any other Person and sell, lease, transfer or otherwise dispose
of substantially all of its properties or assets. The limitations are subject to
a number of important qualifications and exceptions. The Company must annually
report to the Trustee regarding compliance with such limitations.
<PAGE>
15. SUCCESSORS. When a successor assumes all the obligations of its
predecessor under the Senior Subordinated Notes and the Indenture, the
predecessor will not be released from those obligations.
16. DEFAULTS AND REMEDIES. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in aggregate principal amount of
Senior Subordinated Notes then outstanding may declare all the Senior
Subordinated Notes to be due and payable immediately in the manner and with the
effect provided in the Indenture. Holders of Senior Subordinated Notes may not
enforce the Indenture or the Senior Subordinated Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Senior Subordinated Notes. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the Senior
Subordinated Notes then outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Senior Subordinated
Notes notice of any continuing Default or Event of Default (except a Default or
an Event of Default in payment of principal or interest on any Secured Note,
including the failure to make a Net Proceeds Purchase) if it determines that
withholding notice is in their interest.
17. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Senior
Subordinated Notes and may otherwise deal with the Company, the Guarantors, or
their respective Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer, employee
or incorporator, as such, of the Company or any Guarantor shall have any
liability for any obligations of the Company or any Guarantor under the Senior
Subordinated Notes 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 Senior
Subordinated Note by accepting a Senior Subordinated Note waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Senior Subordinated Notes.
19. AUTHENTICATION. This Senior Subordinated Note shall not be valid until
the Trustee or authenticating agent manually signs the certificate of
authentication on this Senior Subordinated Note.
20. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be used in
the name of a Holder of a Senior Subordinated Note or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
21. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Senior Subordinated Notes as a convenience to
the Holders of the Senior Subordinated Notes. No representation is made as to
the accuracy of such numbers as printed on
<PAGE>
the Senior Subordinated Notes and reliance may be placed only on the other
identification numbers printed hereon.
The Company will furnish to any Holder of a Senior Subordinated Note upon
written request and without charge a copy of the Indenture. Requests may be made
to: TRISM, Inc., 4174 Jiles Road, Kennesaw, Georgia 30144, Attention: James G.
Overley.
<PAGE>
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Subject to the limitations set forth in the Indenture, the Guarantors (as
defined in the Indenture referred to in this Senior Subordinated Note and each
hereinafter referred to as a "Guarantor," which term includes any successor or
additional Guarantor under the Indenture) have jointly and severally,
irrevocably and unconditionally guaranteed (a) the due and punctual payment of
the principal of and premium, if any, and interest on the Senior Subordinated
Notes, whether at maturity, by acceleration, call for redemption, upon an Asset
Sale, purchase or otherwise, (b) the due and punctual payment of interest on the
overdue principal of and interest on the Senior Subordinated Notes to the extent
lawful, (c) the due and punctual performance of all other Obligations of the
Company and the Guarantors to the Holders under the Indenture and the Senior
Subordinated Notes and (d) in case of any extension of time of payment or
renewal of any Senior Subordinated Notes or any of such other Obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at maturity, by acceleration, call
for redemption, upon an Asset Sale, purchase or otherwise.
Capitalized terms used herein shall have the same meanings assigned to them
in the Indenture unless otherwise indicated.
Payment on each Senior Subordinated Note is guaranteed, jointly and
severally, by the Guarantors pursuant to Article Twelve of the Indenture and
reference is made to such Indenture for the precise terms of the Guarantees.
The Obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor, and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under its Guarantee or pursuant to its
contribution Obligations under the Indenture, result in the Obligations of such
Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under any applicable Bankruptcy Law or not otherwise being
void, voidable or unenforceable under any applicable Bankruptcy Law. Each
Guarantor that makes a payment or distribution under a Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the Adjusted Net Assets of each Guarantor.
Certain of the Guarantors may be released from their Guarantees upon the
terms and subject to the conditions provided in the Indenture.
<PAGE>
The Guarantee shall be binding upon each Guarantor listed below and its
successors and assigns and shall inure to the benefit of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions in the Indenture.
TRISM SECURED TRANSPORTATION, INC.
TRISM HEAVY HAUL, INC.
E. L. POWELL & SONS TRUCKING CO., INC.
TRI-STATE MOTOR TRANSIT CO.
TRISM SPECIALIZED CARRIERS, INC.
AERO BODY AND TRUCK EQUIPMENT, INC.
TRISM SPECIAL SERVICES, INC.
DIABLO SYSTEMS, INC.
TRISM EASTERN, INC.
TRISM TRANSPORT, INC.
TRISM TRANSPORT SERVICES, INC.
TRISM LOGISTICS, INC.
TRISM EQUIPMENT, INC.
Dated: February 4, 2005
TRISM, INC.
Attest: ------------------------------ By: -----------------------------------
James G. Overley Edward L. McCormick
Chief Financial Officer President and Chief Executive
Officer
<PAGE>
[FORM OF ASSIGNMENT]
To assign this Senior Subordinated Note, fill in the form below: I or we assign
and transfer this Senior Subordinated Note to
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
- ------------------------------------------------------------------------------
and irrevocably appoint --------------- agent to transfer this Senior
Subordinated Note on the books of the Company. The agent may substitute another
to act for him.
Dated: ------------------------------
Signed: -----------------------------
- ------------------------------------------------------------------------------
(Sign exactly as your name appears on the front of this
Senior Subordinated Note)
Signature Guarantee: ------------------------------
Signature must be guaranteed by an eligible guarantor institution within
the meaning of Securities and Exchange Commission Rule 17Ad-15 (including
banks, stock brokers, savings and loan associations, national securities
exchanges, registered securities associations, clearing agencies and credit
unions) with membership or participation in an approved signature guarantee
medallion program if this Senior Subordinated Note is delivered other than
to and in the name of the registered holder.
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Subordinated Note purchased
by the Company pursuant to Section 4.18 of the Indenture, check the following
box: [----------]
If you want to elect to have only part of this Senior Subordinated
Note purchased by the Company pursuant to Section 4.18 of the Indenture, state
the amount: $-------------------.
Dated: ------------------------------
Signed: -----------------------------
- ------------------------------------------------------------------------------
(Sign exactly as your name appears on the front of this
Senior Subordinated Note)
Signature Guarantee: ------------------------------
Signature must be guaranteed by an eligible guarantor institution within
the meaning of Securities and Exchange Commission Rule 17Ad-15 (including
banks, stock brokers, savings and loan associations, national securities
exchanges, registered securities associations, clearing agencies and credit
unions) with membership or participation in an approved signature guarantee
medallion program if this Senior Subordinated Note is delivered other than
to and in the name of the registered holder.
