SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D)
of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report: May 15, 1997
FIRST NATIONS FINANCIAL SERVICES COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
333-1612 76-0481583
(Commission File Number) (IRS Employer Identification Number)
C/O WILLIAM T. JULIANO
CHRISTIANA EXECUTIVE CAMPUS
220 CONTINENTAL DRIVE, SUITE 310
NEWARK, DELAWARE 19713-4314
(Address of principal executive offices)
(800) 790-2474
(Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS
- -------- -------------
(a) On the 10th day of April, 1997 the State of Florida, Department of
Banking and Finance issued a Mortgage Lender License to First Nations
Financial Services Company (the "Company").
(b) On the 23rd day of April, 1997 the Company entered into an Indenture
with Norwest Bank Minnesota, National Association for the benefit of each
other and for the equal and ratable benefit of the Holders of the Senior
Subordinated, Fixed Rate Term Notes of the Company issued pursuant to the
Company's registration statement on Form SB-2 declared effective by the
Securities and Exchange Commission on February 19, 1996.
(c) On the 30th day of April, 1997 the State of Delaware, Department of
Justice approved the individual's Issuer Agent registration and is allowing
the Company to sell its own securities.
(d) On the 14th day of May, 1997 the State of Florida, Department of
Banking and Finance approved the Company as an Issuer/Dealer.
ITEM 7. EXHIBITS
- -------- --------
1. Indenture dated as of the 23rd day of April, 1997 between First
Nations Financial Services Company and Norwest Bank Minnesota, National
Association.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
William T. Juliano, President
Date: May 15, 1997
Item 7 -- Exhibit 1 - Page 52
Item 7 -- Exhibit 1 - Page 53
Item 7 -- Exhibit 1 - Page 1
ITEM 7 - EXHIBIT 1
INDENTURE
FIRST NATIONS FINANCIAL SERVICES COMPANY
OBLIGOR
$50,000,000
SENIOR SUBORDINATED, FIXED RATE TERM NOTES
__________________________________
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
TRUSTEE
DATED AS OF APRIL 23, 1996
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions
Section 1.2 Other Definitions
Section 1.3 Incorporation by Reference of Trust Indenture Act
Section 1.4 Rules of Construction
ARTICLE II THE SECURITIES
Section 2.1 Form and Dating, Denominations and Interest Rates
Section 2.2 Execution and Authentication
Section 2.3 Registrar and Paying Agent
Section 2.4 Paying Agent to Hold Money in Trust
Section 2.5 Noteholder Lists
Section 2.6 Transfer and Exchange
Section 2.7 Payment of Principal and Interest; Principal and Interest Rights
Preserved
Section 2.8 Replacement Notes
Section 2.9 Outstanding Notes
Section 2.10 Treasury Notes
Section 2.11 Temporary Notes
Section 2.12 Cancellation
Section 2.13 Defaulted Interest
ARTICLE III REDEMPTION
Section 3.1 Right of Redemption Limited
Section 3.2 Notice of Redemption
Section 3.3 Payment of Notes Called for Redemption
Section 3.4 Mandatory Redemption
ARTICLE IV COVENANTS
Section 4.1 Payment of Notes
Section 4.2 Maintenance of Office or Agency
Section 4.3 SEC Reports
Section 4.4 Compliance Certificate
Section 4.5 Stay, Extension and Usury Laws
Section 4.6 Liquidation
ARTICLE V SUCCESSORS
Section 5.1 When the Company May Merge, etc.
Section 5.2 Successor Corporation Substituted
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.1 Events of Default
Section 6.2 Acceleration
Section 6.3 Other Remedies
Section 6.4 Waiver of Past Defaults
Section 6.5 Control by Holders
Section 6.6 Limitation on Suits
Section 6.7 Rights of Holders to Receive Payment
Section 6.8 Collection Suit by Trustee
Section 6.9 Trustee May File Proofs of Claim
Section 6.10 Priorities
Section 6.11 Undertaking for Costs
ARTICLE VII TRUSTEE
Section 7.1 Duties of Trustee
Section 7.2 Rights of Trustee
Section 7.3 Individual Rights of Trustee
Section 7.4 Trustee's Disclaimer
Section 7.5 Notice of Defaults
Section 7.6 Reports by Trustee to Holders
Section 7.7 Compensation and Indemnity
Section 7.8 Replacement of Trustee
Section 7.9 Successor Trustee by Merger, etc.
Section 7.10 Eligibility Disqualification
Section 7.11 Preferential Collection of Claims Against Company
ARTICLE VIII DISCHARGE OF INDENTURE
Section 8.1 Termination of Company's Obligations
Section 8.2 Application of Trust Money
Section 8.3 Repayment to Company
Section 8.4 Reinstatement
ARTICLE IX AMENDMENTS
Section 9.1 Without Consent of Holders
Section 9.2 With Consent of Holders
Section 9.3 Compliance with Trust Indenture Act
Section 9.4 Revocation and Effect of Consents
Section 9.5 Notation on or Exchange of Notes
Section 9.6 Trustee to Sign Amendments, etc.
ARTICLE X SUBORDINATION
Section 10.1 Agreement to Subordinate
Section 10.2 Liquidation: Dissolution: Bankruptcy
Section 10.3 Default on Designated Senior Debt
Section 10.4 When Distribution Must Be Paid Over
Section 10.5 Notice by Company
Section 10.6 Subrogation
Section 10.7 Relative Rights
Section 10.8 Subordination May Not Be Impaired by the Company or Holders of
Senior
Debt
Section 10.9 Distribution or Notice to Representative
Section 10.10 Rights of Trustee and Paying Agent
Section 10.11 Authorization to Effect Subordination
Section 10.12 Article Applicable to Paying Agent
Section 10.13 No Recourse
Section 10.14 Miscellaneous
ARTICLE XI MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls
Section 11.2 Notices
Section 11.3 Communication by Holders with Other Holders
Section 11.4 Certificate and Opinion as to Conditions Precedent
Section 11.5 Statements Required in Order, Certificate or Opinion
Section 11.6 Rules by Trustee and Agents
Section 11.7 Legal Holidays
Section 11.8 No Recourse Against Others
Section 11.9 Multiple Originals
Section 11.10 Governing Law
Section 11.11 No Adverse Interpretation of Other Agreements
Section 11.12 Successors
Section 11.13 Severability
Section 11.14 Counterpart Originals
Section 11.15 Table of Contents, Headings, etc.
SIGNATURES
<PAGE>
INDENTURE
INDENTURE dated as of April 23, 1996, by First Nations Financial Services
Company, a Delaware corporation (the "Company"), and Norwest Bank Minnesota,
National Association as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Senior
Subordinated, Fixed Rate Term Notes of the Company issued pursuant to the
Company's registration statement on Form SB-2 declared effective by the
Securities and Exchange Commission on or about February 19, 1996 (the
"Notes").
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions"Section1.1Definitions"
-----------
"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" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or co-registrar of the Notes.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Company" means First Nations Financial Services Company, unless and
until replaced by a successor in accordance with Article V hereof and
thereafter means such successor.
"Company Order" means a written order or request signed in the name of
the Company by an Officer.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is originally dated, located at Norwest Bank Minnesota, N.A.,
Corporate Trust, Norwest Center, Sixth and Marquette, Minneapolis, Minnesota
55479-0069. Attention: Corporate Trust.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means, as of any date, generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as approved by a significant segment of
the accounting profession, which are in effect from time to time.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Holder" or "Noteholder" means a Person in whose name a Note is
registered.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or representing the
balance deferred and unpaid of the purchase price of any property (including
capital Lease obligations) or representing any hedging obligations, except any
such balance that constitutes an accrued expense or a trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
hedging obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and also includes, to the extent not
otherwise included, (a) the Guarantee of items that would be included within
this definition, and (b) liability for items that would arise by operation of
a Person's status as a general partner of a partnership.
"Indenture" means, this Indenture as amended or supplemented from time to
time.
"Interest Accrual Date" means with respect to any Note, the date the
Company accepts funds for the purchase of the Note if such funds are received
by 2:00 p.m. (EDT) on a Business Day, or if such funds are not so received, on
the next Business Day.
"Interest Accrual Period" means, as to each Note, the period from the
later of the Interest Accrual Date of such Note or the day of the last Payment
Date upon which an interest payment was made until the day before the
following Payment Date during which interest accrues on each Note with respect
to any Payment Date.
"Issue Date" means, with respect to any Note, the date on which such Note
is first executed, authenticated and delivered.
"Maturity Date" means, with respect to any Note, the date on which the
principal of such Note becomes due and payable as therein provided.
"Maturity Record Date" means, with respect to any Note, as of 11:59 p.m.
of the date fifteen days prior to the Maturity Date or Redemption Date
applicable to such Note.
"Notes" means the Company's Senior Subordinated, Fixed Rate Term Notes
issued under this Indenture.
"Obligations" means any principal, interest (including Post-Petition
Interest), penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any indebtedness.
"Officer" means the Chairman of the Board or principal executive officer
of the Company, the President or operating officer of the Company, the Chief
Financial Officer or principal financial officer of the Company, the
Treasurer, any Assistant Treasurer, Controller or principal officer of the
Company, Secretary or any Vice-President of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one
of whom must be the principal executive officer, principal operating officer,
principal financial officer or principal accounting officer of the Company.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Paying Agent" means the Trustee or any other depository institution or
trust company that is authorized pursuant to Section 2.3 to pay the principal
of, or interest on, any Notes on behalf of the Company.
"Payment Date" means the 15th day of each calendar month, or if such 15th
day is not a Business Day, the Business Day immediately following such 15th
day and, with respect to a specific Note, the Maturity Date or Redemption Date
of such Note.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Post-Petition Interest" means interest accruing after the commencement
of any bankruptcy or insolvency case or proceeding with respect to the Company
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, at the ram applicable to such
Indebtedness, whether or not such interest is an allowable claim in any such
proceeding.
"Redemption Date" has the meaning given in Article III hereof.
"Redemption Price" means, with respect to any Note to be redeemed, the
principal amount of such Note plus the interest accrued but unpaid during the
Interest Accrual Period up to the Redemption Date for such security.
"Registrar" means the Trustee or any other depository institution or
trust company that is authorized pursuant to Section 2.3 to maintain the
register of the Notes issued under the terms of this Indenture.
"Regular Record Date" means, with respect to a particular Payment Date,
as of 11:59 p.m. of the date fifteen days prior to such Payment Date.
"Responsible Officer" when used with respect to the Trustee, means any
officer in its Corporate Trust Office, or any other assistant officer of the
Trustee in its Corporate Trust Office customarily performing functions similar
to those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"SEC" means the Securities and Exchange Commission.
"Senior Debt" means any Indebtedness (whether outstanding on the date
hereof or thereafter created) incurred by the Company in connection with
borrowings by the Company (including its subsidiaries) from a bank, trust
company, insurance company, or from any other lender whether such Indebtedness
is or is not specifically designated by the Company as being 'Senior Debt" in
its defining instruments. The defining instruments creating any Senior Debt
may contain provisions for acceleration of maturity in the event of a change
of control of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. 77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA.
"Total Permanent Disability" means a determination by a physician chosen
by the Company that the Holder of a Note, who was gainfully employed on a full
time basis at the Issue Date of such security is unable to work on a full time
basis during the succeeding twenty-four months. For purposes of this
definition, "working on a full time basis" shall mean working at least forty
hours per week.
"Trustee" means Norwest Bank Minnesota, National Association until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"U.S. Government Obligations" means direct obligations of the United
States of America, or any agency or instrumentality thereof for the payment of
which the full faith and credit of the United States of America is pledged.
Section 1.2 Other Definitions"Section1.2OtherDefinitions"
------------------
Defined in
Term Section
---- ---------------
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Legal Holiday" 11.7
"Payment Blockage Period" 10.3
"Payment Notices" 10.3
Section 1.3 Incorporation by Reference of Trust Indenture Act
-------------------------------------------------------
"Section1.3IncorporationbyReferenceofTrustIndentureAct"
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
---------------------
"indenture security holder" means a Noteholder;
---------------------------
"indenture to be qualified" means this Indenture;
----------------------------
"indenture trustee" or "institutional trustee" means the Trustee;
------------------ ----------------------
"obligor" on the Notes means the Company or any successor obligor upon
-------
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.
Section 1.4 Rules of Construction"Section1.4RulesofConstruction"
-----------------------
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) references to GAAP, as of any date, shall mean GAAP in
effect in the United States as of such date;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural
include the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating, Denominations and Interest
------------------------------------------------
Rates"Section2.1FormandDating,DenominationsandInterestRates"
--
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The outstanding aggregate
principal amount of Notes outstanding at any time is limited to $50 million,
provided, however, that the Company and the Trustee may, without the consent
of any Holder, increase such aggregate principal amount of Notes which may be
outstanding at any time. The Notes may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Company is subject or usage. Each Note shall be dated the date of its
authentication. Each Note shall be in such denomination as may be designated
from time to time by the Company but in no event in a denomination less than
$1,000 and in multiples of not less than $25. Each Note shall have a term of
not less than three months and not greater than ten years as shall be
designated by the Company from time to time.
Each Note shall bear interest from and commencing on its Interest Accrual
Date at such rate of interest as the Company shall determine from time to
time; provided, however, that the interest rate will be fixed for the term of
the Note upon issuance, subject to change upon extension. A Company Order
delivered to the Trustee shall specify the rate of interest applicable to each
term of the Notes determined by the Company from time to time.
Interest on a Note with a term of twelve (12) months or less will
compound daily and be payable at maturity. Interest on a Note of longer
duration will compound daily and the Holder thereof may elect to have interest
paid monthly, on the fifteenth day of each calendar month, quarterly, on
January 15, April 15, July 15 and October 15, semi-annually, on January 15 and
July 15, annually, on January 15, or upon maturity. A Holder may change this
election once during the term of the Note. The Company will provide a form to
request a change of interest payment election. Use of such form by a Holder
is not required. However, requests to change the interest payment must be in
writing.
The Company will give each Holder (existing as of the applicable Maturity
Record Dated) a written notice at least seven days prior to the Maturity Date
of the Note held by such Holder reminding such Holder of the pending maturity
of the Note and noticing the Holder of the Company's intention to repay, or if
the Company does not intend to repay the Note reminding the Holder that the
automatic extension provision described in the next paragraph will take effect
unless the Holder requests payment and stating the interest rate payable
during the renewal term. Such notice shall also state that payment of
principal of a Note be made upon presentation and surrender of such Note and
shall specify the place where such Note may be presented and surrendered for
the making of such payment. If the Company gives notice to a Holder of the
Company's intention to repay a Note at maturity, no interest will accrue after
the maturity Date for such Note. Otherwise, if a Holder requests repayment
within seven days after the Maturity Date, the Company will pay interest on
the Note during the period after the Note's Maturity Date and prior to
redemption at the lower of (i) the lowest interest rate then being paid on
debt securities being offered by the Company to the general public or (ii) the
rate being paid on such Note immediately prior to it maturity.
If, within seven days after the Maturity Date, of a Note, a Holder of
such Note has not demanded repayment of the Note, and the Company has not
noticed its intention to repay such Note at least seven days prior to
maturity, such Note shall be extended automatically for the same term, and
shall be deemed to have been renewed by the Holder thereof as of the Maturity
Date. A Note will continue to renew as described herein absent some permitted
action be either the Holder or the Company. Interest shall continue to accrue
from the first day of such renewed term. Such Note, as renewed, will continue
in all its provisions, including provisions relating to payment, except that
the interest rate payable during any renewed term shall be the interest rate
which is being offered by the Company on similar Notes as of the renewal date.
If similar Notes are not then being issued, the interest rate upon renewal
will be the Note's current rate. The Company will provide a request for
repayment form along with the notice of maturity. Use of such form by a Holder
is not a condition of repayment. However, requests for repayment must be in
writing.
Subordinated Notes with a duration of greater than twelve (12) months are
subject to early repayment at the election (a) of the Holder only upon the
occurrence of a Total Permanent Disability of such Holder (or if such Note is
held jointly, upon the Total Permanent Disability of one of such Holders), (b)
of a Holder's estate after a Holder's death or (c) if such Note is held
jointly, of a Holder upon the death of such Holder's joint Holder. Otherwise,
Holders will have no right to demand early repayment. Holders electing early
repayment shall do so by complying with the procedures described in Section
3.4.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and to the extent applicable,
the Company and the Trustee, by their execution and delivery of this
Indenture, and the Holders by accepting the Notes, expressly agree to such
terms and provisions and to be bound thereby. In case of a conflict, the
provisions of this Indenture shall control.
Section 2.2 Execution and
--------------
Authentication"Section2.2ExecutionandAuthentication"
-------------
Two Officers of the Company shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Notes. If an Officer whose signature is on a Note no longer holds that office
at the time the Note is authenticated by the Trustee, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the authorized manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture.
All of the Notes are not to be issued at one time. Therefore, at any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Notes executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication, and
delivery of such Notes. Such Company Order shall set forth the necessary
information in form acceptable to the Trustee for the issuance of such Notes
including the interest rate, Maturity Date, Issue Date and Interest Accrual
Date.
The Trustee shall be entitled to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Notes, (i) a Company Order specifying the terms of the Notes,
(ii) a certified copy of one or more resolutions of the Board of Directors of
the Company by or pursuant to which the terms of such Notes have been approved
and, if requested by the Trustee (iii) an Opinion of Counsel substantially to
the effect that:
(a) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Notes conform to the
requirements of this Indenture and constitute sufficient authority hereunder
for the Trustee to authenticate and deliver such Notes;
(b) the form and terms of such Notes have been established in
conformity with the provisions of this Indenture;
(c) in the event that the forms or terms of such Notes have been
established in a supplemental indenture, the execution and delivery of such
supplemental indenture has been duly authorized by all necessary corporate
action of the Company, such supplemental indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation enforceable against
the Company in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(d) the execution and delivery of such Notes have been duly
authorized by all necessary corporate action of the Company and such Notes
have been duly executed by the Company and, assuming due authentication by the
Trustee and delivered by the Company, are valid and binding obligations
enforceable against the Company in accordance with their terms, entitled to
the benefit of the Indenture subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and subject to such
other exceptions as counsel shall request and as to which the Trustee shall
not reasonably object; and
(e) the amount of Notes Outstanding of such series, together with the
amount of such Notes, does not exceed any limit established under the terms of
this Indenture on the amount of Notes that may be authenticated and delivered.
The Trustee shall not be required to authenticate such Notes if the
issuance of such Notes pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Notes and this Indenture is a
manner which is not reasonably acceptable to the Trustee.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate
of authentication substantially in one of the forms provided for herein duly
executed by the Trustee or by an authenticating agent, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Note
shall have been duly authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Note to the
Trustee for cancellation as provided in Section 2.12, together with a Company
Order to such effect, the Trustee shall cancel such Note in the manner
provided in Section 2.12.
The Trustee shall, upon receipt of a Company Order, together with such of
the above described instruments and documents requested by the Trustee,
authenticate Notes for original issue. Notes shall be issued only in
registered form and shall be dated the date of authentication.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate a Note 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.
Section 2.3 Registrar and Paying Agent"Section2.3RegistrarandPayingAgent"
--------------------------
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and (ii)
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. With the prior written consent of the Trustee, the Company may
appoint one or more co-registrars but only one paying agent. The term
"Registrar" includes any co-registrar, and the term "Paying Agent" includes
any successor paying agent. With the prior written consent of the Trustee,
the Company may change the Paying agent or Registrar without prior notice to
any Noteholder, provided that the Company shall promptly notify the
Noteholders of the name and address of any Agent not a party to this
Indenture. The Company may not act as Paying Agent or Registrar. In the
event the Company utilizes any Agent other than the Trustee, the Company shall
enter into an appropriate agency agreement with such Agent, which agreement
shall incorporate the provisions of the TIA. The agreement shall implement
the provisions of this Indenture that relate to such Agent. The Trustee
acting as Registrar and Paying Agent, shall be entitled to appropriate
compensation in accordance with Section 7.7 hereof.
The Company appoints the Trustee as Registrar, Paying Agent and agent for
service of notices and demands in connection with the Notes. The Trustee
shall act as Registrar and Paying Agent until such time as a successor Paying
Agent or Registrar is appointed in accordance with the provisions of this
Indenture.
Section 2.4 Paying Agent to Hold Money in
----------------------------------
Trust"Section2.4PayingAgenttoHoldMoneyinTrust"
----------------
Prior to each due date of the principal or interest on any Note, the
Company shall deposit with the Paying Agent sufficient funds to pay principal,
premium, if any, and interest then so becoming due and payable in cash. The
Company shall require any Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of
Noteholders or the Trustee all money held by the Paying Agent for the payment
of principal or interest on the Notes, and will notify the Trustee promptly in
writing of any default by the Company in making any such payment. While any
such default continues, the Trustee shall require the Paying Agent (if other
than the Trustee) to pay all money held by it to the Trustee. The Trustee at
any time may require the Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Trustee) shall have no further liability for the money delivered to the
Trustee. The Company will give prompt written notice to the Trustee of its
intention to change the name and address of the Paying Agent, and any change
in the name or address of the Paying Agent shall not be effective without the
prior written consent of the Trustee.
Section 2.5 Noteholder Lists"Section2.5NoteholderLists"
-----------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Noteholders and shall otherwise comply with TIA 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee each quarter
during the term of this Indenture and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Noteholders, and the
aggregate principal amount outstanding and the Company shall otherwise comply
with TIA 312(a).
Section 2.6 Transfer and Exchange"Section2.6TransferandExchange"
-----------------------
The Notes are not negotiable instruments and cannot be transferred by
mere endorsement and delivery. No rights of record ownership to a Note may be
transferred without the prior written consent of the Company (which consent
shall not be unreasonably withheld), when Notes are presented to the Registrar
with the request:
(a) to register the transfer of the Notes, or
(b) to exchange such Notes for an equal principal amount of
Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Notes presented or surrendered for register of transfer or exchange
(a) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
the Holder thereof or by his attorney, duly authorized in writing;
(b) shall be accompanied by a Company Order consenting to such
transfer or exchange; and
(c) if requested by the Company or the Registrar, an opinion of
Holder's counsel (which counsel shall be reasonably acceptable to the Company)
that the transfer does not violate any applicable securities laws.
To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the Registrar's written
request.
The Company may assess service charges to a Holder for any registration
or transfer or exchange, and 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 exchange pursuant to Section 9.5 hereof).
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under the Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Prior to due presentment for registration of transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the person in whose name
any Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of an interest on such Note and for all other
purposes whatsoever, whether such Note is overdue, and neither the Trustee,
any Agent nor the Company shall be affected by notice to the contrary.
Section 2.7 Payment of Principal and Interest; Principal and Interest
---------------------------------------------------------
Rights
--
P
reserved"
Each Note shall accrue interest at the rate specified for such Note and
such interest shall be payable on each Payment Date following the Issue Date
for such Note, until the principal thereof becomes due and payable. Any
installment of interest payable on a Note that is caused to be punctually paid
or duly provided for by the Company on the applicable Payment Date shall be
paid to the Holder in whose name such Note is registered in the Note Register
on the applicable Regular Record Date, by check mailed to such Holder's
address as it appears in the Note Register on such Regular Record Date. The
payment of any interest payable in connection with the payment of any
principal payable with respect to such Note on a Maturity Date or Redemption
Date shall be payable as provided below. Any funds with respect to which such
checks were issued which remain uncollected shall be held in accordance with
Section 8.3 hereof. Any installment of interest not punctually paid or duly
provided for shall be payable in the manner and to the Holders specified in
Section 2.13 hereof.
Each of the Notes shall have stated maturities of principal as shall be
indicated in each such Note. The principal of each Note shall be paid in full
no later than the Maturity Date thereof unless the term of such Note is
extended pursuant to Section 2.1 hereof or such Note becomes due and payable
at an earlier date by acceleration, redemption or otherwise.
Interest on each Note shall be due and payable on each Payment Date at
the interest rate applicable to such Note for the Interest Accrual Period
related to such Note and such Payment Date.
Notwithstanding any of the foregoing provision with respect to payments
of principal of and interest on the Notes, if the Notes have become or been
declared due and payable following an Event of Default, then payments of
principal of and interest on the Notes shall be made in accordance with
Article VI hereof.
The principal payment made on any Note on any Maturity Date (or the
Redemption Price of any Note required to be redeemed), and any accrued
interest thereon, shall be payable only upon presentation and surrender of
such Note on or after the Maturity Date or Redemption Date therefor at the
office or agency of the Company maintained by it for such purpose pursuant to
Section 2.3 hereof or at the office of the Paying Agent for such Note.
All computations of interest due with respect to any Note shall be made,
unless otherwise specified in the Note, based upon the actual number of days
(e.g., 365 or 366) in the applicable year.
Section 2.8 Replacement Notes"Section2.8ReplacementNotes"
------------------
If any mutilated Note is surrendered to the Company, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of a
Company Order if required by the Trustee, shall authenticate a replacement
Note if the Trustee's requirements for replacements of Notes are met. If
required by the Trustee or the Company, an unsecured indemnity agreement must
be supplied by the Holder that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Note is
replaced. The Company and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.9 Outstanding Notes"Section2.9OutstandingNotes"
------------------
The Notes outstandingat any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
If a Note is replaced pursuant to Section 2.8 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.10 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
Section 2.10 Treasury Notes"Section2.10TreasuryNotes"
---------------
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Affiliate of the Company shall be considered as though not
outstanding, except that for purposes of determining whether the Trustee shall
be protected in relying on any such direction, waiver or consent, only Notes
that a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded.
Section 2.11 Temporary Notes"Section2.11TemporaryNotes"
----------------
Until Notes are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Notes but may have variations that the Company
and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee, upon receipt of
a Company Order, shall authenticate Notes in exchange for temporary Notes.
Until such exchange, temporary Notes shall be entitled to the same rights,
benefits and privileges as Notes.
Section 2.12 Cancellation"Section2.12Cancellation"
------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent (if other than the Trustee)
shall forward to the Trustee any Notes surrendered to them for registration or
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation
and shall destroy canceled Notes (subject to the record retention requirement
of the Exchange Act) unless the Company directs them to be returned to it.
All canceled Notes held by the Trustee shall be destroyed and certification of
their destruction delivered to the Company unless by a Company Order, the
Company shall direct that canceled Notes be returned to it.
Section 2.13 Defaulted Interest"Section2.13DefaultedInterest"
-------------------
If the Company defaults in a payment of interest on any Note, it shall
pay the defaulted interest plus, to the extent lawful, any interest payable on
the defaulted interest, to the Holder of such Note on a subsequent special
record date, which date shall be at the earliest practicable date but in all
events at least 5 Business Days prior to the payment date, in each case at the
rate provided in the Note. The Company shall, with written notification to
the Trustee, fix or cause to be fixed each such special record date and
payment date. At least 15 days before any such special record date, the
Company (or the Trustee, in the name of and at the expense of the Company)
shall mail to Noteholder(s) a notice that states the special record date, the
related payment date and the amount of such interest to be paid.
ARTICLE III
REDEMPTION ARTICLE III REDEMPTION
Section 3.1 Right of Redemption
---------------------
Limited"Section3.1RightofRedemptionLimited"
-------------------
The Company may not redeem, in whole or in part, any Notes prior to the
scheduled Maturity Date of the Note except Notes with a maturity of five
years, or more. The redemption price of Notes with a maturity of five years
or more is the unpaid principal balance plus interest accrued to the date of
redemption and a redemption premium in the amount of 10% of the unpaid
principal. In addition, except as provided in this Article III, the Company
shall have no mandatory redemption or sinking fund obligations with respect to
any of the Notes.
Section 3.2 Notice of Redemption"Section3.2NoticeofRedemption"
----------------------
Notice of redemption to the holders of securities to be redeemed as a
whole or in part shall be given by mailing notice of such redemption by first
class mail, postage prepaid, at least 20 days and not more than 50 days prior
to the date fixed for redemption to such holders of Notes at their last
addresses as they shall appear upon the registry books maintained by the
Registrar. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of
any other Note.
The notice of redemption to each such Holder shall specify the principal
amount of each Note held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places or payment, that payment
will be made upon presentation and surrender of such Notes, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will expire. In case any Note is to be redeemed in
part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Notes to be redeemed at the option of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
On or prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Company will deposit with the Trustee
or with the Paying Agent (if different from the Trustee) an amount of money
sufficient to redeem on the redemption date all Notes so called for redemption
at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If less than all the outstanding Notes are to be
redeemed, the Company will deliver to the Trustee at least 45 days prior to
the date fixed for redemption a Company Order stating the aggregate principal
amount of Notes to be redeemed.
If less than all the Notes eligible for redemption are to be redeemed,
the Trustee shall select the Notes to be redeemed either by lot or pro rata or
in such other manner as it shall deem appropriate and fair; provided, however,
that if Notes are selected for redemption by lot, the Trustee shall select
Notes for redemption in denominations of at least $1,000, except as may
otherwise be agreed between the Trustee and the Company. Notes may be
redeemed in part in integral multiples of $25 only. The Trustee shall
promptly notice the Company in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the principal
amount thereof to be redeemed. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption of Notes
shall relate, in the case of any Note redeemed or to be redeemed only in part,
to the portion of the principal amount of such Note which has been or is to be
redeemed.
Section 3.3 Payment of Notes Called for
-------------------------------
Redemption"Section3.3PaymentofNotesCalledforRedemption"
------------------
If notice of redemption has been given as above provided, the Notes or
portions of the Notes specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Company shall default in the payment of such
Notes at the redemption price, together with interest accrued to said date)
interest on the Notes or portions of Notes so called for redemption shall
cease to accrue and, except as provided in Section 7.1 and 8.2, such Notes
shall cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the holders thereof shall have
no right in respect of such Notes except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Notes at a place of payment specified in
said notice, said Notes or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided, that any
payment of interest becoming due on the date fixed for redemption shall be
payable to the holders of such Notes registered as such on the relevant record
date subject to the terms and provisions of Section 2.7 hereof.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate borne by the Note
until the principal of such Notes shall have been paid or duly provided for.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to or on the order of
the Holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount equal to the unredeemed portion
of the Note so presented.
Section 3.4 Mandatory Redemption"Section3.4MandatoryRedemption"
---------------------
Upon the death or Total Permanent Disability of a Holder of a Note, the
estate of such Holder (in the event of death) or such Holder (in the event of
Total Permanent Disability) may require the Company to redeem, in whole and
not in part, the Note held by such Holder by delivering to the Company an
irrevocable election (a "Redemption Election") requiring the Company to make
such redemption. In the event a Note is held jointly by two or more Persons,
such Note shall be subject to the elective redemption provisions of this
Article III upon the death or Total Permanent Disability of either Holder.
Upon receipt of a Redemption Election, the Company shall promptly (i) make
such investigation as may be necessary, (ii) request additional information
from the Noteholder, including a certificate of death or physician's
statement, (iii) request the Noteholder to submit to a physical examination by
a physician selected by the Company, or (iv) take such other action reasonably
believed by the Company to be necessary in order to determine that death or
Total Permanent Disability has occurred. In the event the Company determines
the Note is eligible for redemption, the Company shall designate the
Redemption Date for such Note. The Redemption Date shall be no more than
fifteen days after the Company's determination of eligibility for redemption.
The Company shall instruct the Paying Agent, by Company Order, to pay the
Redemption Price to the estate of the Holder or the Holder, as the case may
be, in accordance with the provisions set out in Section 2.7 hereof. No
interest shall accrue on the Notes to be redeemed under this Article III for
any period of time after the Redemption Date for such Note and after the
Paying Agent has tendered the Redemption Price to the Estate of the Holder or
to the Holder, as the case may be.
ARTICLE IV
COVENANTS ARTICLE IV COVENANTS
Section 4.1 Payment of Notes"Section4.1PaymentofNotes"
------------------
The Company shall duly pay the principal of and interest on each Note on
the dates and in the manner provided in the Note. Principal and interest
shall be considered paid on the date due if the Paying Agent holds, at least
one Business Day before that date, money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal and interest then due; provided, however, that principal and
interest shall not be considered paid within the meaning of this Section 4.1
if money is held by the Paying Agent for the benefit of holders of Senior Debt
pursuant to the provisions of Article X hereof. Such Paying Agent shall
return to the Company, no later than 5 days following the date of payment, any
money (including accrued interest) that exceeds such amount of principal and
interest paid on the Notes in accordance with this Section 4.1.
To the extent lawful, the Company shall pay interest (including
Post-Petition Interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate borne by the Notes, compounded semi-annually; it shall
pay interest (including Post-Petition Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate, compounded semi-annually.
Section 4.2 Maintenance of Office or
---------------------------
Agency"Section4.2MaintenanceofOfficeorAgency"
---------------------
The Company will maintain an office or agency (which shall initially be
an office of the Trustee, Registrar or co-registrar) where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company hereby appoints the Trustee at its Corporate Trust Office as its
office or agency for each of said purposes. The Company will give prompt
written notice to the Trustee of its intention to change the location, and any
change in the location of such office or agency shall not be effective without
the prior written consent of the Trustee. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency and such designation, recession or change will not be effective without
the prior written consent of the Trustee.
Notwithstanding the foregoing or any other provision of this Indenture,
neither the Company nor any of its Affiliates shall act as Paying Agent, and
there shall be only one Paying Agent, whether or not an Event of Default shall
have occurred.
Section 4.3 SEC Reports"Section4.3SECReports"
------------
The Company shall file with the Trustee, within 15 days after filing with
the SEC, copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company
is not subject to the requirements of such Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the SEC and the Trustee on :he
same timely basis such reports, information and other documents as it would
file if it were subject to the requirements of Section 13 or 15(d) of the
Exchange Act. The Company shall also comply with the provisions of TIA
314(a). The Trustee shall have no duty to review such information, documents
or reports to determine compliance with any provisions of the Exchange Act,
TIA or this Indenture.
So long as any of the Notes remain outstanding, the Company shall cause
an annual report to stockholders and each quarterly or other financial report
furnished by it generally to stockholders to be filed with the Trustee at the
time of such mailing or furnishing to stockholders. If the Company is not
required to furnish annual or quarterly reports to its stockholders pursuant
to the Exchange Act, the Company shall cause its financial statements,
including any notes thereto (and, with respect to annual reports, an auditors'
report by the Company's certified independent accountants) and a "Management's
Discussion and Analysis of Financial Condition or Plan of Operations,"
comparable to that which would have been required to appear in annual or
quarterly reports filed under Section 13 or 15(d) of the Exchange Act to be so
filed with the Trustee within 120 days after the end of each of the Company's
fiscal years and within 60 days after the end of each of the first three
quarters of each such fiscal year.
Whether or not required by the rules and regulations of the SEC, the
Company shall file a copy of all such information with the SEC for public
availability and make such information available to investors who request it
in writing.
Section 4.4 Compliance Certificate"Section4.4ComplianceCertificate"
-----------------------
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to determining whether
each has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his knowledge each has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Evens of Default of which he
may have knowledge and what action each is taking or proposes to take with
respect thereto) and that to the best of his knowledge no event has occurred
and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes are prohibited or if such event
has occurred, a description of the event and what action each is taking or
proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.3 above shall be accompanied by a
written statement of the Company's independent public accountants that in
making the examination necessary for certification of such financial
statements nothing has come to their attention which would lead them to
believe that the Company has violated the provisions of Section 4.1 of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
The Company will, so long as any of the Notes are outstanding, deliver to
the Trustee, forthwith upon any Officer becoming aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
Section 4.5 Stay, Extension and Usury
----------------------------
Laws"Section4.5Stay,ExtensionandUsuryLaws"
--------------------
The Company 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, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all beneficial advantage of any
such law, and covenants that it will not, by resort to any such law, 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
has been enacted.
Section 4.6 Liquidation"Section4.6Liquidation"
-----------
The Board of Directors or the stockholders of the Company may not adopt a
plan of liquidation that provides for, contemplates or the effectuation of
which is preceded by (a) the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company otherwise than
substantially as an entirety (Section 5.1 of this Indenture being the Section
hereof which governs any such sale, lease, conveyance or other disposition
substantially as an entirety) and (b) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and
of the remaining assets of the Company to the holders of capital stock of the
Company, unless the Company, prior to making any liquidating distribution
pursuant to such plan, makes provision for the satisfaction of the Company's
Obligations hereunder and under the Notes as to the payment of principal and
interest.
ARTICLE V
SUCCESSORS ARTICLE V SUCCESSORS
Section 5.1 When the Company May Merge, etc.
-------------------------------------
"Section5.1WhentheCompanyMayMerge,etc."
-------------
The Company may not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to another corporation, Person or
entity unless (a) the Company is the surviving corporation or the entity or
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof
or the District of Columbia; (b) the entity or Person formed by or surviving
any such consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made assumes all the obligations of the Company
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee, under the Notes and this Indenture; and (c) immediately after such
transaction no Default or Event of Default exists.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture. The Trustee shall be entitled to
conclusively rely upon such Officers' Certificate and Opinion of Counsel.
Section 5.2 Successor Corporation
----------------------
Substituted"Section5.2SuccessorCorporationSubstituted"
---------------------
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company, is merged or to which such
sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person has been named
as the Company herein; provided, however, that the Company shall not be
released or discharged from the obligation to pay the principal of or interest
on the Notes.
ARTICLE VI
DEFAULTS AND REMEDIES ARTICLE VI DEFAULTS AND REMEDIES
Section 6.1 Events of Default"Section6.1EventsofDefault"
-------------------
An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on a Note
when the same becomes due and payable whether or not such payment is
prohibited by the provisions of Article X hereof and such default continues
for a period of 30 days;
(b) the Company defaults in the payment of the principal of any
Note when the same becomes due and payable at maturity, upon a required
redemption or otherwise whether or not prohibited by the provisions of Article
X hereof;
(c) the Company fails to observe or perform any covenant,
condition or agreement on the part of the Company to be observed or performed
pursuant to Section 4.6 or 5.1 hereof;
(d) the Company fails to comply with any of its other agreements
or covenants in or provisions of, the Notes or this Indenture and the Default
continues for the period and after the notice specified below;
(e) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case; (ii) consents to the entry of
an order for relief against it in an involuntary case; (iii) consents to the
appointment of a Custodian of it or for all or substantially all of its
property; (iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to pay debts as the same become due; or
(f) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (i) is for relief against the Company in an
involuntary case; (ii) appoints a Custodian of the Company or for all or
substantially all of its property; (iii) orders the liquidation of the
Company, and the order or decree remains unstayed and in effect for 120
consecutive days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clause (c) or (d) of Section 6.1 is not an Event of
Default until the Trustee or the Holders of at least twenty-five percent in
principal amount of the then outstanding Notes notify the Company of the
Default and the Company does not cure the Default or such Default is not
waived within 60 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."
Section 6.2 Acceleration"Section6.2Acceleration"
------------
If an Event of Default (other than an Event of Default specified in
clauses (e) or (f) of Section 6.1) occurs and is continuing, the Trustee by
notice to the Company or the Holders of at least twenty-five percent in
principal amount of the then outstanding Notes by written notice to the
Company and the Trustee may declare the unpaid principal of and any accrued
interest on all the Notes to be due and payable. Upon such declaration the
principal and interest shall be due and payable immediately; provided,
however, that if any Indebtedness or Obligation is outstanding pursuant to the
Senior Debt, upon a declaration of acceleration by the Holders, all principal
and interest under this Indenture shall be due and payable upon the earlier of
(i) the day which is 5 Business Days after the receipt by each of the Company
and the holders of Senior Debt of such written notice of acceleration or (ii)
the date of acceleration of any Indebtedness under any Senior Debt. If an
Event of Default specified in clause (e) or (f) of Section 6.1 occurs, such an
amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The
Holders of twenty-five percent in principal amount of the then outstanding
Notes by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been
cured or waived.
Section 6.3 Other Remedies"Section6.3OtherRemedies"
---------------
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal or interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding event if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults"Section6.4WaiverofPastDefaults"
------------------------
Holders of twenty-five percent in principal amount of the then
outstanding Notes by notice to the Trustee may waive an existing Default or
Event of Default and its consequences except a continuing Default or Event of
Default in the payment of the principal of or interest on any Note held by a
non-consenting Holder. Upon actual receipt of any such notice of waiver by a
Responsible Officer of the Trustee, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.5 Control by Holders"Section6.5ControlbyHolders"
--------------------
The Holders of twenty-five percent in principal amount of the then
outstanding 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, provided, that indemnification for the Trustee's fees
and expenses, in a form reasonably satisfactory to the Trustee, shall have
been provided. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Noteholders, or that may involve the
Trustee in personal liability.
Section 6.6 Limitation on Suits"Section6.6LimitationonSuits"
---------------------
A Noteholder may pursue a remedy with respect to this Indenture or the
Notes only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least twenty-five percent in principal
amount of the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of twenty-five percent
in principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.7 Rights of Holders to Receive
--------------------------------
Payment"Section6.7RightsofHolderstoReceivePayment"
-----------------
Notwithstanding any other provision of this Indenture, but subject to
Article X hereof, the right of any Holder of a Note to receive payment of
principal and interest on the Note, on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
Section 6.8 Collection Suit by Trustee"Section6.8CollectionSuitbyTrustee"
--------------------------
If an Event of Default specified in Section 6.1(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.9 Trustee May File Proofs of
------------------------------
Claim"Section6.9TrusteeMayFileProofsofClaim"
-------------------
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any
such judicial proceeding is hereby authorized by each Noteholder to make such
payments to the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to the Noteholders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof. To the extent that the payment of any
such compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.7
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties which the Holders of the Notes may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Noteholder any plan of reorganizations arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Noteholder in any
such proceeding.
If the Trustee does not file a proper claim or proof of debt in the form
required in any such proceeding prior to 30 days before the expiration of the
time to file such claims or proofs, then any holder of Senior Debt shall have
the right to file and prove all claims therefor and to take all such other
action in the name of the Holders or otherwise, as such holder of Senior Debt
may determine to be necessary or appropriate for the enforcement of the
provisions of Article X, including the right to demand, sue for, collect and
receive the payments and distributions in respect of the Notes which are
required to be paid or delivered to the holders of Senior Debt.
Section 6.10 Priorities"Section6.10Priorities"
----------
If the Trustee collects any money pursuant to this Article, it shall,
subject to the provisions of Article X hereof, pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.7, including payment of all compensation, expenses and
liabilities incurred, and all advances made, if any, by the Trustee and the
costs and expenses of collection;
Second: to holders of Senior Debt to the extent required by Article
X hereof;
Third: to Noteholders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Noteholders.
Section 6.11 Undertaking for Costs"Section6.11UndertakingforCosts"
-----------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee, for any action taken or omitted
by it as a Trustee, a court in its 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 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7, or a suit by Holders of more than 25% in
principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE ARTICLE VII TRUSTEE
Section 7.1 Duties of Trustee"Section7.1DutiesofTrustee"
-------------------
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 their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
Except during the continuance of an Event of Default:
(a) The duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee.
(b) 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 resolutions, statements, reports,
documents, order, certificates, opinions or other instruments furnished to the
Trustee and conforming to the requirements of this Indenture. However, in the
case of any of the above that are specifically required to be furnished to the
Trustee pursuant to this Indenture, the Trustee shall examine them to
determine whether they substantially conform to the requirements of this
Indenture.
The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(a) This paragraph does not limit the effect of paragraph (2) of
this Section.
(b) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(c) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to this Section.
No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.2 Rights of Trustee"Section7.2RightsofTrustee"
-------------------
The Trustee may conclusively rely upon any document believed by it to be
genuine and to have been signed or presented to it by the proper Person. The
Trustee need not investigate any fact or matter stated in the document. The
Trustee shall have no duty to inquire as to the performance of Company's
covenants in Article IV.
Before the Trustee acts or refrains from acting, it may require any one
or more of the following: (i) a Company Order, (ii) an Officers' Certificate,
or (iii) an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Company
Order, Officers' Certificate or Opinion of Counsel. The Trustee may consult
with counsel and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
The Trustee may act through agents, attorneys, custodians or nominees and
shall not be responsible for the misconduct or negligence or the supervision
of any agents, attorneys, custodians or nominees appointed by it with due
care.
The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
The Trustee shall not be deemed to have notice of an Event of Default for
any purpose under this Indenture unless notified of such Event of Default by
the Company, the Paying Agent (if other than the Trustee) or a Holder of the
Notes.
Section 7.3 Individual Rights of
----------------------
Trustee"Section7.3IndividualRightsofTrustee"
--------------------
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or an Affiliate of
the Company with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer"Section7.4Trustee'sDisclaimer"
---------------------
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision
hereof, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection was the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
Section 7.5 Notice of Defaults"Section7.5NoticeofDefaults"
--------------------
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to
Noteholders a notice of the Default or Event of Default within 90 days after
it occurs. At least five (5) Business Days prior to the mailing of any notice
to Noteholders under this Section 7.5, the Trustee shall provide the Company
with notice of its intent to mail such notice. Except in the case of a
Default or Event of Default in payment on any Note, the Trustee may withhold
the notice if and so long as the Responsible Officers of the Trustee in good
faith determines that withholding the notice would have no material adverse
effect on the Noteholders.
Section 7.6 Reports by Trustee to
- ------------ ------------------------
Holders"Section7.6ReportsbyTrusteetoHolders"
- ----------- ---------------------
Within 60 days after the end of each fiscal year beginning with the
fiscal year ending May 15, 1998, the Trustee shall mail to Noteholders a brief
report dated as of such reporting date that complies with TIA 313(a) (but if
no event described in TIA 313(a) has occurred within the 12 months preceding
the reporting date, no report need be prepared or transmitted). The Trustee
also shall comply with TIA 313(b). The Trustee shall also transmit by mail
all reports as required by TIA 313(c).
Commencing at the time this Indenture is qualified under the TIA, a copy
of each report mailed to Noteholders under this Section 7.6 (at the time of
its mailing to Noteholders) shall be filed with the SEC and each stock
exchange, if any, on which the Notes are listed. The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange.
Section 7.7 Compensation and Indemnity"Section7.7CompensationandIndemnity"
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and its performance of the
duties and services required hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, except as
set forth in the second next paragraph. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations
hereunder, except to the extent the Company is prejudiced thereby. The Company
shall defend the claim and the Trustee shall reasonably cooperate in such
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such one counsel. The Company need not pay
for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee through its own negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on the Notes. Such lien shall survive the satisfaction and discharge
of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee"Section7.8ReplacementofTrustee"
------------------------
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting as Trustee under
this Indenture.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a different successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 30 days after notice
that the Trustee has resigned or has been removed, the Company or the Trustee
or the Holders of at least a majority in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any Noteholder who has been a
Noteholder for at least 6 months fails to comply with Section 7.10, such
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to all
Noteholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the lien provided for in
Section 7.7. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 hereof shall continue
for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger, etc.
------------------------------------
"Section7.9SuccessorTrusteebyMerger,etc."
------------
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to another corporation, the
successor corporation without any further act shall be the successor Trustee.
Section 7. 10 Eligibility
-----------
Disqualification"Section7.10EligibilityDisqualification"
-----------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America or of any state or territory thereof or of the District of Columbia
authorized under such laws to exercise corporate trustee power, shall be
subject to supervision or examination by Federal, state, territorial or
District of Columbia authority and shall have a combined capital and surplus
of at least ($50,000,000) as set forth in its most recent published annual
report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA 310(a)(1). The Trustee is subject to TIA 310(b).
Section 7.11 Preferential Collection of Claims Against
---------------------------------------------
Company"Section7.11PreferentialCollectionofClaimsAgainstCompany"
--
The Trustee is subject to TIA 311 (a), excluding any creditor
relationship listed in TIA 311(b). A Trustee who has resigned or been
removed shall be subject to TIA 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE ARTICLE VIII DISCHARGE OF INDENTURE
Section 8.1 Termination of Company's
--------------------------
Obligations"Section8.1TerminationofCompany'sObligations"
---------------------
This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.7 and 8.4, and the Company's, Trustee's
and Paying Agent's obligations under Section 8.3 shall survive) when all
outstanding Notes theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Notes which have been replaced or paid)
to the Trustee for cancellation and the Company has paid all sums payable by
the Company hereunder. In addition, the Company may terminate all of their
obligations under this Indenture if:
(a) the Company irrevocably deposits in trust with the Trustee
or at the option of the Trustee, with a trustee reasonably satisfactory to the
Trustee and the Company under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, money or U.S. Government
Obligations sufficient (as certified by an independent public accountant
designated by the Company) to pay principal and interest on the Notes to
maturity or redemption, as the case may be, and to pay all other sums payable
by it hereunder, provided that (i) the trustee of the irrevocable trust shall
have been irrevocably instructed to pay such money or the proceeds of such
U.S. Government Obligations to the Trustee and (ii) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of said principal and interest with
respect to the Notes;
(b) the Company delivers to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture have been complied with; and
(c) no Event of Default or event (including such deposit) which,
with notice or lapse of time, or both, would become an Event of Default with
respect to the Notes shall have occurred and be continuing on the date of such
deposit.
Then, this Indenture shall cease to be of further effect (except as
provided in this paragraph), and the Trustee, on demand of the Company, shall
execute proper instruments acknowledging confirmation of and discharge under
this Indenture. The Company may make the deposit only if Article X hereof
does not prohibit such payment. However, the Company's obligations in
Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 4.1, 4.2, 4.3, 7.7, 7.8, 8.3 and 8.4
and the Trustee's and Paying Agent's obligations in Section 8.3 shall survive
until the Notes are no longer outstanding. Thereafter, only the Company's
obligations in Section 7.7 and 8.4 and the Company's, Trustee's and Paying
Agent's obligations in Section 8.3 shall survive.
After such irrevocable deposit made pursuant to this Section 8.1 and
satisfaction of the other conditions set forth herein, the Trustee upon
written request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture except for those surviving obligations
specified above.
In order to have money available on a payment date to pay principal or
interest on the Notes, the U.S. Government Obligations shall be payable as to
principal or interest at least one Business Day before such payment date in
such amounts as will provide the necessary money. U.S. Government Obligations
shall not be callable at the issuer's option.
Section 8.2 Application of Trust Money"Section8.2ApplicationofTrustMoney"
--------------------------
The Trustee or a trustee satisfactory to the Trustee and the Company
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 8.1. It shall apply the deposited money and the money
from U.S. Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal and interest on the Notes.
Section 8.3 Repayment to Company"Section8.3RepaymenttoCompany"
----------------------
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall Pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for 2 years after the date upon which such payment shall
have become due; provided, however, that the Company shall have either caused
notice of such payment to be mailed to each Noteholder entitled thereto no
less than 30 days prior to such repayment or within such period shall have
published such notice in a newspaper of widespread circulation published in
the City of Philadelphia. After payment to the Company, Noteholders entitled
to the money must look, to the Company for payment as general creditors unless
an applicable abandoned property law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money
shall cease.
Section 8.4 Reinstatement"Section8.4Reinstatement"
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.2 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the Company's obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.1 until
such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with Section 8.2; provided,
however, that if the Company has made any payment of interest on or principal
of any Notes because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such
payment, as long as no money is owed to the Trustee by the Company, from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS ARTICLE IX AMENDMENTS
Section 9.1 Without Consent of Holders"Section9.1WithoutConsentofHolders"
--------------------------
The Company and the Trustee may amend this Indenture or the Notes without
the consent of any Noteholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Section 5.1;
(c) to provide for uncertificated Notes in addition to
certificated Notes;
(d) to make any change that does not adversely affect the legal
rights hereunder of any Noteholder; including but not limited to an increase
in the aggregate dollar amount of Notes which may be outstanding under this
Indenture.
(e) make any change in the second paragraph of Article III;
provided, however, that no such change shall adversely affect the rights of
any outstanding Note; or
(f) to comply with any requirements of the SEC in connection
with the qualification of this Indenture under the TIA.
Section 9.2 With Consent of Holders"Section9.2WithConsentofHolders"
------------------------
The Company and the Trustee may amend this Indenture or the Notes with
the written consent of the Holders of at least twenty-five percent in
principal amount of the then outstanding Notes. The Holders of twenty-five
percent in principal of the then outstanding Notes may also waive any existing
default or compliance with any provision of this Indenture or the Notes.
However, without the consent of each Noteholder affected, an amendment or
waiver under this Section may not (with respect to any Note held by a
non-consenting Holder);
(a) reduce the principal amount of a Note whose Holder must
consent to an amendment, supplement or waiver;
(b) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(c) reduce the principal of or change the fixed maturity of any
Note or alter redemption provisions or the price at which the Company shall
offer to purchase such Notes pursuant to Article III hereof;
(d) make any Note payable in money other than that stated in the
Note;
(e) modify or eliminate the right of the estate of a Holder or a
Holder to cause the Company to redeem a Note upon the death or Total Permanent
Disability of a Holder pursuant to Article III; provided, however, that the
Company may not modify or eliminate such right, as it may be in effect on the
Issue Date, of any Note which was issued with such right. After an amendment
under the subsection 9.1(e) becomes effective, the Company shall mail to the
Holders of each Note then outstanding a notice briefly describing the
amendment.
(f) make any change in Section 6.4 or 6.7 hereof or in this
sentence of this Section 9.2;
(g) make any change in Article X that adversely affects the
rights of any Noteholders; or
(h) waive a Default or Event of Default in the payment of
principal of, or premium, if any or interest on, or redemption payment with
respect to, any Note (except a rescission of acceleration of the Notes by the
Holders of at least twenty-five percent in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such
acceleration).
It shall not be necessary for the consent of the Holders under this
Section 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 or waiver under this Section becomes effective, the
Company shall mail to the Holders of each Note affected thereby a notice
briefly describing the amendment 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 supplemental indenture or waiver. Subject
to Sections 6.4 and 6.7 hereof, the Holders of twenty-five percent in
principal amount of the Notes then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Notes.
Section 9.3 Compliance with Trust Indenture
----------------------------------
Act"Section9.3CompliancewithTrustIndentureAct"
--------------
If at the time this Indenture shall be qualified under the TIA, every
amendment to this Indenture or the Notes shall be set forth in a supplemental
indenture that complies with the TIA as then in effect.
Section 9.4 Revocation and Effect of
---------------------------
Consents"Section9.4RevocationandEffectofConsents"
---------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. An amendment or waiver becomes effective in accordance with its terms
and thereafter binds every Noteholder.
The Company may fix a record date for determining which Holders must
consent to such amendment or waivers. If the Company fixes a record date, the
record date shall be fixed at (i) the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 2.5,
or (ii) such other date as the Company shall designate.
Section 9.5 Notation on or Exchange of
------------------------------
Notes"Section9.5NotationonorExchangeofNotes"
-------------------
The Trustee may place an appropriate notation about an amendment or
waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall authenticate new Notes that reflect the
amendment or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment or waiver.
Section 9.6 Trustee to Sign Amendments, etc.
------------------------------------
"Section9.6TrusteetoSignAmendments,etc."
-------------
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article IX if, in the Trustee's reasonable discretion, the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign
it. In signing or refusing to sign such amendment or supplemental indenture,
the Trustee shall be entitled to receive, if requested, an indemnity
reasonably satisfactory to it and to receive and, subject to Section 7.1,
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel (or written advice of counsel) as conclusive evidence that
such amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms. The Company may not
sign an amendment or supplemental indenture until its Board of Directors
approves it.
ARTICLE X
SUBORDINATION ARTICLE X SUBORDINATION
Section 10.1 Agreement to Subordinate"Section10.1AgreementtoSubordinate"
------------------------
The Company agrees, and each Noteholder by accepting a Note consents and
agrees, that the Indebtedness evidenced by the Notes and the payment of the
principal of and interest on the Notes is subordinated in right of payment, to
the extent and in the manner provided in this Article, to the prior payment in
full, in cash, cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, of all Obligations due in respect of Senior Debt of
the Company whether outstanding on the date hereof or hereafter incurred, and
that the subordination is for the benefit of the holders of Senior Debt.
For purposes of the Article X, a payment or distribution on account of
the Notes may consist of cash, property or securities, by set-off or
otherwise, and a payment or distribution on account of any of the, Notes shall
include, without limitation, any redemption, purchase or other acquisition of
the Notes.
Section 10.2 Liquidation: Dissolution: Bankruptcy"Section10.2Liquidation"
------------------------------------
Upon any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon (i) any
dissolution or winding-up or total or partial liquidation or reorganization of
the Company whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy or (ii) any bankruptcy or insolvency case or
proceeding or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
assets, (iii) any assignment for the benefit of creditors or any other
marshaling of assets of the Company, all obligations due, or to become due, in
respect of Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt) shall first
indefeasibly be paid in full, or provision shall have been made for such
payment, in cash, cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, before any payment is made on account of the
principal of, premium, if any, or interest on the Notes, except that
Noteholders may receive securities that are subordinated to at least the same
extent as the Notes are to (x) Senior Debt and (y) any securities issued in
exchange for Senior Debt. Upon any such dissolution winding-up, liquidation
or reorganization, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the
Holders of the Notes or the Trustee under this Indenture would be entitled,
except for the provisions hereof, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders of the Notes or by the
Trustee under this Indenture if received by them, directly to the holders of
Senior Debt (pro rata to such holders on the basis of the amounts of Senior
Debt held by such holders) or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Debt may have been issued, as their interests may appear, for
application to the payment of Senior Debt remaining unpaid until all such
Senior Debt has been indefeasibly paid in full, or provisions shall have been
made for such payment, in cash, cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders
of Senior Debt.
For purposes of this Article X, the words "cash, property or securities"
shall not be deemed to include securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which are
subordinated, to at least the same extent as the Notes, to the payment of all
Senior Debt then outstanding or to the payment of all securities issued in
exchange therefor to the holders of Senior Debt at the time outstanding. The
consolidation of the Company with, or the merger of the Company with or into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of its property as an entirety, or substantially as
an entirety, to another corporation upon the terms and conditions provided in
Article V shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article V.
Section 10.3 Default on Designated Senior
-------------------------------
Debt"Section10.3DefaultonDesignatedSeniorDebt"
-----------------------------
In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt, or any
amount owing from time to time under or in respect of Senior Debt or in the
event that any nonpayment event of default with respect to any Senior Debt
shall have occurred and be continuing and shall have resulted in such Senior
Debt becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, or
In the event that any other nonpayment event of default with respect to
any Senior Debt shall have occurred and be continuing permitting the holders
of such Senior Debt (or a trustee on behalf of the holders thereof) to declare
such Senior Debt due and payable prior to the date on which it would otherwise
have become due and payable, then the Company shall make no payment, direct or
indirect (including any payment which may be payable by reason of the payment
of any other Indebtedness of the Company being subordinated to the payment of
the Notes) (other than securities that are subordinated to at least the same
extent as the Notes arc to (x) Senior Debt and (y) any securities issued in
exchange for Senior Debt) unless and until (i) such event of default shall
have been cured or waived or shall have ceased to exist or such acceleration
shall have been rescinded or annulled, or (ii) in case of any nonpayment event
of default specified in (b), during the period (a "Payment Blockage Period")
commencing on the date the Company and the Trustee receive written notice (a
"Payment Notice") of such event of default (which notice shall be binding on
the Trustee and the Noteholders as to the occurrence of such an event of
default) from a holder of the Senior Debt to which such default relates and
ending on the earliest of (A) 179 days after such date, (B) the date, if any,
on which such Senior Debt to which such default relates is discharged or such
default is waived by the holders of such Senior Debt or otherwise cured and
(C) the date on which the Trustee receives written notice from the holder of
such Senior Debt to which such default relates terminating the Payment
Blockage Period. No new Payment Blockage Period may be commenced within 360
days after the receipt by the Trustee of any prior Payment Blockage Notice.
For all purposes of this Section 10.3, no Event of Default which existed or
was commencing with respect to the Senior Debt to which a Payment Blockage
Period relates on the date such Payment Blockage Period commenced shall be or
be made the basis for the commencement or any subsequent Payment Blockage
Period unless such event of default is cured or waived for a period of not
less than 180 consecutive days.
Section 10.4 When Distribution Must Be Paid
----------------------------------
Over"Section10.4WhenDistributionMustBePaidOver"
-------------
If the Trustee or any Noteholder receives any payment with respect to the
Notes, whether in cash, property or securities (other than securities that are
subordinated to at least the same extent of the Notes are to (x) Senior Debt
and (y) any securities issued in exchange for Senior Debt at a time when such
payment is prohibited by Article X hereof), such payment shall be held by the
Trustee or such Noteholder, in trust for the benefit of, and shall be paid
forthwith over and delivered to, the holders of Senior Debt (pro rata to such
holders on the basis of the amount of Senior Debt held by such holders) for
application to the payment of all Obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full, in
cash, cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, in accordance with the terms of such Senior Debt, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article X, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of
Noteholders or the Company or any other Person money or assets to which any
holders of Senior Debt shall be entitled by virtue of this Article X, except
if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
Section 10.5 Notice by Company"Section10.5NoticebyCompany"
- ------------- -------------------
The Company shall promptly notify the Trustee and the Paying Agent in
writing of any facts known to the Company that would cause a payment of any
Obligations with respect to the Company to violate this Article, but failure
to give such notice shall not affect the subordination of the Notes to the
Senior Debt provided in this Article.
Section 10.6 Subrogation"Section10.6Subrogation"
-----------
After all Senior Debt is paid in full, in cash, cash equivalents or
otherwise in a manner satisfactory to the holders of such Senior Debt, and
until the Notes are paid in full, Noteholders shall be subrogated (equally and
ratably with all other Indebtedness pari passu with the Notes) to the rights
of holders of Senior Debt to receive distributions applicable to Senior Debt
to the extent that distributions otherwise payable to the Noteholders have
been applied to the payment of Senior Debt. A distribution made under this
Article to holders of Senior Debt which otherwise would have been made to
Noteholders is not, as between the Company and Noteholders, a payment by the
Company on the Senior Debt.
Section 10.7 Relative Rights"Section10.7RelativeRights"
----------------
This Article defines the relative rights of Noteholders, and holders of
Senior Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Noteholders, the
obligations of the Company which are absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(b) affect the relative rights of Noteholders and creditors of
the Company other than their rights in relation to holders of Senior Debt; or
(c) prevent the Trustee or any Noteholder from exercising its
available remedies upon a Default or Event of Default, subject to the rights
of holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Noteholders.
If the Company fails because of this Article to pay principal of or
interest on a Note on the due date the failure is still a Default or Event of
Default.
Section 10. 8 Subordination May Not Be Impaired by the Company or Holders
-----------------------------------------------------------
of Senior
- ----------
D
- -
t"
No right of any present or future holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes and the Obligations
related thereto shall be prejudiced or impaired by any act, or failure to act
by any such holder or by the Company, the Trustee or any Agent or by the
failure of the Company to comply with this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without limiting the effect of the preceding paragraph, any holder of
Senior Debt may at any time and from time to time without the consent of or
notice to any other holder or to the Trustee, without impairing or releasing
any of the rights of any holder of Senior Debt under this Indenture, upon or
without any terms or conditions and in whole or in part:
(a) change the manner, place or term of payment, or change or
extend the time of payment of, renew or alter any Senior Debt or any other
liability of the Company to such holder, any security therefore or any limits
incurred directly or indirectly in respect thereof, and the provisions of this
Article X shall apply to the Notes as so changed, extended renewed or altered;
(b) notwithstanding the provisions of Section 5.1 hereof, sell,
exchange, release, surrender, realize upon or otherwise deal with in any
manner and in any order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, any Senior Debt or any other
liability of the Company to such holder any other liabilities incurred
directly or indirectly in respect thereof or hereof or any offset
thereagainst;
(c) exercise or refrain from exercising any rights or remedies
against the Company or others or otherwise act or refrain from acting or, for
any reason, fail to file, record or otherwise perfect any security interest in
or lien on any property of the Company or any other Person; and
(d) settle or compromise any Senior Debt or any other liability of
the Company to such holder, or any security therefor, or any liability
incurred directly or indirectly in respect thereof.
All rights and interests under this Indenture of any holder of Senior
Debt and all agreements and obligations of the Trustee, the Holders, and the
Company under Article VI and under this Article X shall remain in full force
and effect irrespective of (i) any lack of validity or enforceability of any
agreement or instrument relating to any Senior Debt or (ii) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Trustee, any Holder, or the Company.
Any holder of Senior Debt hereby authorized to demand specific
performance of the provisions of this Article X, whether or not the Company
shall have complied with any of the provisions of this Article X applicable to
it, at any time when the Trustee or any Holder shall have failed to comply
with any of these provisions. The Trustee and the Holders irrevocably waive
any defense based on the adequacy of a remedy at law that might be asserted as
a bar to such remedy of specific performance.
Section 10.9 Distribution or Notice to Representative Section 10.9
-----------------------------------------
Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
representative.
Upon any payment or distribution of assets of the Company referred to in
this Article X, the Trustee and the Noteholders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings
are pending or upon any certificate of any representative of any holder of
Senior Debt or of the liquidating trustee or agent or other Person making any
distribution, delivered to the Trustee or to the Noteholders, for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article X.
Section 10.10 Rights of Trustee and Paying Agent Section 10.10 Rights
----------------------------------
of Trustee and Paying Agent
Notwithstanding the provisions of this Article X or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment or
distribution by the Trustee, or the taking of any action by the Trustee, and
the Trustee or Paying Agent may continue to make payments on the Notes unless
it shall have received at its Corporate Trust Division at least 5 Business
Days prior to the date of such payment written notice of facts that would
cause the payment of any Obligations with respect to the Notes to violate this
Article, which notice, unless specified by a holder of Senior Debt as such,
shall not be deemed to be a Payment Notice. The Trustee may conclusively rely
on such notice. Only the Company or a holder of Senior Debt may give the
notice. Nothing in this Article X shall apply to amounts due to, or impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.7
hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
Section 10.11 Authorization to Effect
-------------------------
Subordination"Section10.11AuthorizationtoEffectSubordination"
------------------
Each Noteholder by his acceptance thereof authorizes the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Section 10.12 Article Applicable to Paying
-------------------------------
Agent"Section10.12ArticleApplicabletoPayingAgent"
-------------
In case at any time any Paying Agent (other than the Trustee or the
Company) shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article X 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 X in addition to
or in place of the Trustee.
Section 10.13 No Recourse"Section10.13NoRecourse"
------------
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any Note, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such or against any past,
present or future stockholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Notes by the holders thereof and as part of the
consideration for the issue of the Notes.
Section 10.14 Miscellaneous"Section10.14Miscellaneous"
-------------
The agreements contained in this Article X shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any of the
Senior Debt is rescinded or must otherwise be returned by any holder of Senior
Debt upon the insolvency, bankruptcy or reorganization of the Company or
otherwise all as though such payment had not been made.
The Trustee shall notify all holders of Senior Debt (of whose identity
the Trustee has received reasonable advance written notice) of the existence
of any Default or Event of Default under Section 6.1 promptly after a
Responsible Officer of the Trustee actually becomes aware thereof; provided,
however, that at least five (5) Business Days prior to the ratification of any
holder of Senior Debt under this Section 10.14, the Trustee shall provide the
Company with notice of its intent to provide such notification.
ARTICLE XI
MISCELLANEOUS ARTICLE XI MISCELLANEOUS
Section 11.1 Trust Indenture Act
---------------------
Controls"Section11.1TrustIndentureActControls"
-------------------
If any prevision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA 318(c), the imposed duties shall control.
Section 11.2 Notices"Section11.2Notices"
-------
Any notice, instruction, direction, request or other communication by the
Company, the Trustee or any other holder of Senior Debt to the others is duly
given if in writing and delivered in person or mailed by first-class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
FIRST NATIONS FINANCIAL SERVICES COMPANY
Christiana Executive Campus
220 Continental Drive, Suite 310
Newark, Delaware 19713-4314
Attention: William T. Juliano
Telephone: (302) 292-2100
Telecopier: (302) 292-2151
With a copy to:
SONFIELD & SONFIELD
770 South Post Oak Lane, Suite 435
Houston, Texas 77056-1913
Attention: Robert L. Sonfield, Jr.
Telephone: (713) 877-8333
Telecopier: (713) 877-1547
If to the Trustee:
NORWEST BANK MINNESOTA, N.A.
Corporate Trust
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust
Telephone: (612) 667-8058
Telecopier: (617) 667-9825
If to a holder of Senior Debt, such address as such holder of Senior Debt
shall have provided in writing to the Company and the Trustee.
The Company, the Trustee or a holder of Senior Debt by notice to the
Company and the Trustee may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to Noteholders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; 5 Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied, and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Noteholder shall be mailed by first
class mail, certified or registered, return receipt requested, to his address
shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Noteholder or any defect in it shall not affect its
sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Noteholders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 11.3 Communication by Holders with Other
---------------------------------------
Holders"Section11.3CommunicationbyHolderswithOtherHolders"
--------
Noteholders may communicate pursuant to TIA 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes.
The Trustee is subject to 312(b). The Company, the Trustee the Registrar
and anyone else shall have the protection of TIA 312(c).
Section 11.4 Certificate and Opinion as to Conditions
---------------------------------------------
Precedent"Section11.4CertificateandOpinionastoConditionsPrecedent"
---
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Trustee may require the Company to provide
any one or more of the following:
(a) a Company Order in form and substance reasonably
satisfactory to the Trustee (which may not include the statements set forth in
Section 11.5) describing the requested action and stating that, in the opinion
of the signer or signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been
complied with; or
(b) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5) 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 complied with; or
(c) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
Section 11.5 Statements Required in Order, Certificate or
-------------------------------------------------
Opinion"Section11.5StatementsRequiredinOrder,CertificateorOpinion"
Each order, 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 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion whether such covenant or condition has been complied with;
and
(d) a statement whether, in the opinion of such Person, such
condition or covenant has, been complied with.
Section 11.6 Rules by Trustee and
-----------------------
Agents"Section11.6RulesbyTrusteeandAgents"
--------------------
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.7 Legal Holidays"Section11.7LegalHolidays"
---------------
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the City of Minneapolis, Minnesota or at a place of payment
are authorized or obligated by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
Section 11.8 No Recourse Against
---------------------
Others"Section11.8NoRecourseAgainstOthers"
-------------------
No director, officer, employee, agent, manager or stockholder of the
Company as such, shall have any liability for any obligations of the Company
under the Notes or this Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. Each Noteholder by accepting
a Note waives and releases all such liability.
Section 11.9 Multiple Originals"Section11.9MultipleOriginals"
-------------------
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
Section 11.10 Governing Law"Section11.10GoverningLaw"
--------------
THE INTERNAL LAW OF THE STATE OF DELAWARE SHALL GOVERN THIS INDENTURE AND
THE SECURITIES, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 11.11 No Adverse Interpretation of Other
--------------------------------------
Agreements"Section11.11NoAdverseInterpretationofOtherAgreements"
-------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
Section 11.12 Successors"Section11.12Successors"
----------
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 11.13 Severability"Section11.13Severability"
------------
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 11.14 Counterpart Originals"Section11.14CounterpartOriginals"
---------------------
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 11.15 Table of Contents, Headings, etc.
------------------------------------
"Section11.15TableofContents,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 hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
SIGNATURES SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and their respective corporate seals to be affixed and attested,
as of the day and year first above written.
FIRST NATIONS FINANCIAL SERVICES COMPANY
By:
Name:
Title:
Attest:
Name:
Title:
(SEAL)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
By:
Name:
Title:
