<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(e) (1) OF THE SECURITIES EXCHANGE
ACT OF 1934)
(Amendment No. 1)
RB Asset, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
RB Asset, Inc.
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Statement)
15% Non-Cumulative Perpetual Preferred Stock, Series A, par value $1.00
- --------------------------------------------------------------------------------
(Title of Class of Securities)
749254 207
- --------------------------------------------------------------------------------
(CUSIP Number of Class of Securities)
Nelson L. Stephenson
RB Asset, Inc.
645 Fifth Avenue
New York, NY 10022
(212) 848-0201
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Statement)
November 25, 1998
- --------------------------------------------------------------------------------
(Date Tender Offer First Published, Sent or Given to Security Holders)
<PAGE>
Item 9. Material to be filed as Exhibits.
Exhibit (a)(1)* Offering Circular of the Issuer dated November 25, 1998
Exhibit (a)(2)* Letter of Transmittal of the Company dated November 25,
1998.
Exhibit (a)(3)* Notice of Guaranteed Delivery of the Company dated November
25, 1998.
Exhibit (a)(4)* Letter to Holders of the 15% Non-Cumulative Perpetual
Preferred Stock, Series A, par value $1.00, of the Company
dated November 25, 1998.
Exhibit (a)(5)* Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees of the Company dated November
25, 1998.
Exhibit (a)(6)* Letter to Clients of the Company dated November 25, 1998.
Exhibit (a)(7)* IRS Guidelines
Exhibit (b)(1) Form of Indenture by and between the Issuer and LaSalle
National Bank, as Trustee
- --------------------------
* Previously filed.
2
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true complete and correct
December 22, 1998
By: /s/ Nelson L. Stephenson
---------------------------------
Nelson L. Stephenson, President
and Chief Executive Officer
3
<PAGE>
Exhibit (b)(1)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
RB ASSET, INC.
Increasing Rate Junior Subordinated Notes
due 2006
--------------------
INDENTURE
--------------------
Dated as of December __, 1998
LaSalle National Bank
Trustee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
<TABLE>
<S> <C>
Section 1.01 Definitions.................................................................................................1
Section 1.02 Other Definitions...........................................................................................6
Section 1.03 Incorporation by Reference of Trust Indenture Act...........................................................6
Section 1.04 Rules of Construction.......................................................................................7
ARTICLE II
THE SECURITIES
Section 2.01 Form and Dating.............................................................................................7
Section 2.02 Execution and Authentication................................................................................7
Section 2.03 Registrar and Paying Agent..................................................................................8
Section 2.04 Notice of Payment; Payment by the Corporation to the Trustee; Paying Agent to Hold Money in Trust...........8
Section 2.05 Securityholder Lists........................................................................................9
Section 2.06 Transfer and Exchange.......................................................................................9
Section 2.07 Replacement Securities......................................................................................9
Section 2.08 Outstanding Securities.....................................................................................11
Section 2.09 Treasury Securities........................................................................................11
Section 2.10 Temporary Securities.......................................................................................11
Section 2.11 Cancellation...............................................................................................12
Section 2.12 Defaulted Interest.........................................................................................12
Section 2.13 Certain Limitation on Securities...........................................................................12
ARTICLE III
COVENANTS
Section 3.01 Payment of Securities......................................................................................13
Section 3.02 Dividends and Certain Other Elements.......................................................................13
Section 3.03 Transactions with Affiliates...............................................................................14
Section 3.04 Reports by Corporation.....................................................................................14
Section 3.05 Maintenance of Properties; Insurance.......................................................................15
Section 3.06 Maintenance of Books and Records...........................................................................15
Section 3.07 Conduct of Business........................................................................................15
Section 3.08 Taxes and Claims...........................................................................................15
Section 3.09 Money for Security Payments to Be Held in Trust............................................................16
Section 3.10 Compliance Certificate.....................................................................................16
Section 3.11 Continued Existence........................................................................................17
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE IV
SUCCESSORS
Section 4.01 When Corporation May Merge, etc............................................................................17
Section 4.02 Successor Substituted......................................................................................18
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default..........................................................................................18
Section 5.02 Acceleration: Limitations on Acceleration..................................................................19
Section 5.03 Other Remedies.............................................................................................19
Section 5.04 Waiver of Default..........................................................................................20
Section 5.05 Control by Majority........................................................................................20
Section 5.06 Limitation on Suits........................................................................................20
Section 5.07 Rights of Holders to Receive Payment.......................................................................20
Section 5.08 Collection Suit by Trustee.................................................................................21
Section 5.09 Trustee May File Proofs of Claim...........................................................................21
Section 5.10 Priorities.................................................................................................21
Section 5.11 Undertaking for Costs......................................................................................21
ARTICLE VI
TRUSTEE
Section 6.01 Duties of Trustee..........................................................................................22
Section 6.02 Rights of Trustee..........................................................................................23
Section 6.03 Individual Rights of Trustee...............................................................................23
Section 6.04 Disclaimer.................................................................................................23
Section 6.05 Notice of Defaults.........................................................................................23
Section 6.06 Reports by Trustee to Holders..............................................................................24
Section 6.07 Compensation and Indemnity.................................................................................24
Section 6.08 Replacement of Trustee.....................................................................................25
Section 6.09 Successor Trustee by Merger................................................................................26
Section 6.10 Eligibility; Disqualification..............................................................................26
Section 6.11 Preferential Collection of Claims Against Corporation......................................................26
ARTICLE VII
SATISFACTION AND DISCHARGE
Section 7.01 Satisfaction and Discharge of Indenture....................................................................26
Section 7.02 Application of Trust Money.................................................................................27
Section 7.03 Repayment to Corporation...................................................................................27
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII
AMENDMENTS
Section 8.01 Without Consent of Holders.................................................................................27
Section 8.02 With Consent of Holders....................................................................................28
Section 8.03 Compliance with Trust Indenture Act........................................................................28
Section 8.04 Revocation and Effect of Consents..........................................................................28
Section 8.05 Notation on or Exchange of Securities......................................................................29
Section 8.06 Trustee Protected..........................................................................................29
ARTICLE IX
SUBORDINATION
Section 9.01 Agreement to Subordinate...................................................................................29
Section 9.02 Liquidation; Dissolution; Bankruptcy.......................................................................29
Section 9.03 Default on Senior Debt.....................................................................................30
Section 9.04 No Suspension of Remedies..................................................................................31
Section 9.05 When Distribution Must Be Paid Over........................................................................32
Section 9.06 Notice by the Corporation..................................................................................32
Section 9.07 Subrogation................................................................................................32
Section 9.08 Relative Rights............................................................................................32
Section 9.09 No Waiver of Subordination Provisions......................................................................33
Section 9.10 Distribution or Notice to Representative...................................................................33
Section 9.11 Rights of Trustee and Paying Agent.........................................................................34
Section 9.12 Authorization to Effect Subordination; No Fiduciary Duty to Holders of Senior Debt.........................34
Section 9.13 Miscellaneous..............................................................................................35
ARTICLE X
REDEMPTION
Section 10.01 Applicability of Article...................................................................................35
Section 10.02 Election to Redeem; Notice to Trustee......................................................................35
Section 10.03 Selection by Trustee of Securities to Be Redeemed..........................................................36
Section 10.04 Notice of Redemption.......................................................................................36
Section 10.05 Deposit of Redemption Price................................................................................37
Section 10.06 Securities Payable on Redemption Date......................................................................37
Section 10.07 Securities Redeemed in Part................................................................................37
</TABLE>
iii
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<TABLE>
<S> <C>
ARTICLE XI
MISCELLANEOUS
Section 11.01 The Indenture Act Controls.................................................................................38
Section 11.02 Notices....................................................................................................38
Section 11.03 Communication by Holders with Other Holders................................................................39
Section 11.04 Certificate and Opinion as the Conditions Present..........................................................39
Section 11.05 Statements Required in Certificate or Opinion..............................................................39
Section 11.06 Rules by Trustee and Agents................................................................................39
Section 11.07 Legal Holidays.............................................................................................39
Section 11.08 No Recourse Against Others.................................................................................40
Section 11.09 Duplicate Originals........................................................................................40
Section 11.10 Governing laws.............................................................................................40
Section 11.11 No Adverse Interpretation of Other Agreements..............................................................40
Section 11.12 Successors.................................................................................................40
Section 11.13 Severability...............................................................................................40
Section 11.14 Table of Contents, Headings, etc...........................................................................40
</TABLE>
iv
<PAGE>
CROSS-REFERENCE TABLE
R.B. ASSET, INC.
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture
- --------------- -----------
<S> <C>
Section 310(a)(1) 6.10
(2) Not Applicable
(3) Not Applicable
(4) Not Applicable
(5) Not Applicable
(b)(1) 6.10
(2) Not Applicable
(3) Not Applicable
(4) Not Applicable
(5) Not Applicable
(6) Not Applicable
(7) Not Applicable
(8) Not Applicable
(9) 6.10
(10) Not Applicable
(c) Not Applicable
Section 311(a) 6.11
(b) 6.11
(c) Not Applicable
Section 312(a) Not Applicable
(b) 11.03
(c) 11.03
Section 313(a) 6.06
(b) 6.06
(c) Not Applicable
(d) Not Applicable
Section 314 3.10
</TABLE>
- ----------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
v
<PAGE>
INDENTURE dated as of December __, 1998 between RB Asset, Inc., a
Delaware corporation, and LaSalle National Bank, national banking association,
as trustee.
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Increasing Rate Junior
Subordinated Notes due 2006:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purpose of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Board of Directors" means the Board of Directors of the Corporation or
any authorized committee of such Board.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the city in which the
Corporate Trust Office is located are authorized or obligated by law or
executive order to close.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease which
would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"Commission" means the Securities and Exchange Commission, and its
successors.
"Consolidated Tangible Capital" of any Person means, at any date, the
total amount of non-redeemable preferred stock and common shareholders' equity
(excluding amounts attributable to securities which are exchangeable for or
convertible into securities other than non-redeemable preferred stock or common
stock and any amounts attributable to shares issued pursuant to an acquisition
by such Person) which would appear on a consolidated statement of financial
condition of such Person as at such date prepared in accordance with GAAP, less
intangible assets appearing thereon.
<PAGE>
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which on the date hereof is 135 South LaSalle Street,
Chicago, Illinois 60603.
"Corporation" means RB Asset, Inc. until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter, "Corporation" shall mean each successor Person, and any other
obligor upon the Securities.
"Credit Agreement" means the Credit Agreement dated as of June 28, 1996
among the Corporation, Marine Midland Bank and certain affiliates of the
Corporation, as modified, amended or extended from time to time.
"Custodian" means a receiver, conservator, liquidator, custodian,
trustee, sequestrator, assignee in bankruptcy or insolvency or any similar
official.
"Default" means an event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default.
"Depository" means The Depository Trust Company and includes any
successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and as in effect from time to time.
"GAAP" means 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,
from time to time.
"Holder" and "Securityholder" means a Person in whose name a Security
is registered in the register of the Securities kept by the Registrar.
"Indebtedness" of any person means any indebtedness, contingent or
otherwise, in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement obligations with respect thereto) or
representing the balance deferred and unpaid of the purchase price of any
property (including pursuant to Capital Lease Obligations), if and to the extent
any of the foregoing indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP (except that any such
balance that constitutes a trade payable and/or an accrued liability arising in
the ordinary course of business shall not be considered Indebtedness), and shall
also include, to the extent not otherwise included, any Capital Lease
Obligations, the maximum fixed repurchase price of any Redeemable Stock,
indebtedness secured by a Lien to which the property or assets owned or held by
such Person is subject, whether or not the obligations secured thereby shall
have been assumed, guarantees of items that would be included within this
definition to the extent of such guarantees (exclusive of whether such items
would appear upon such balance sheet), and net liabilities in respect of
Interest Rate Protection Obligations. For purposes of the preceding sentence,
the maximum fixed repurchase price of any Redeemable Stock which does
2
<PAGE>
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Stock as if such Redeemable Stock were repurchased on
any date on which Indebtedness shall be required to be determined pursuant to
the Indenture, provided that if such Redeemable Stock is not then permitted to
be repurchased, the repurchase price shall be the book value of such Redeemable
Stock. The amount of Indebtedness of any person at any date shall be, without
duplication, (i) the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any such contingent
obligations at such date and (ii) in the case of Indebtedness of others secured
by a Lien to which the property or assets owned or held by such Person is
subject, the lesser of the fair market value at such date of any asset subject
to a Lien securing the Indebtedness of others and the amount of the Indebtedness
secured.
"Indenture" means this instrument as amended from time to time by one
or more indentures supplemental hereto entered into pursuant to the applicable
provisions hereto.
"Interest Payment Due" means the date specified in the Securities as
the fixed date on which interest is due and payable.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include without limitation, interest rate swaps, caps,
floors, collars and similar agreements.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give any security interest in and any filing or other agreement to give
any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Marine Credit Agreement" means the Credit Agreement dated as of
June 28, 1996 between Marine Midland, as lender, and River Bank America (the
Corporation's predecessor in interest) and certain of its affiliates, as
borrowers, as amended as of the date hereof, and as hereafter amended from
time to time.
"Marine Debt" means the principal of, premium, if any, and interest on
all obligations of every nature of the Corporation from time to time owed to
Marine Midland under the Marine Credit Agreement, including, without
ilmitation, principal of and interest on, and all fees and expenses payable
under such agreement, and all other Obligations (as such term is defined in
the Marine Credit Agreement).
"Marine Midland" means Marine Midland Bank, a New York banking
corporation and its successors and assigns.
"Officer" means the Chairman of the Board of Directors, the President,
any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Corporation.
"Officers' Certificate" means a certificate signed by (i) the Chairman
or Vice Chairman of the Board of Directors, President or any Vice President and
(ii) the Treasurer, Secretary or any Assistant Treasurer or any Assistant
Secretary of the Corporation and delivered to the Trustee by the terms of this
Indenture; provided that, in the event an Officer of the Corporation holds a
position set forth in (i) or (ii) above, such Officer may sign an Officer's
Certificate only in his capacity as an Officer under either clause (i) or (ii),
but not both.
"Opinion of Counsel" means a written opinion from legal counsel, which
opinion and legal counsel are acceptable to the Trustee.
3
<PAGE>
"Order of the Corporation" means a written order signed in the name of
the Corporation by its President or any Vice President and by its Treasurer,
Secretary or any Assistant Treasurer or Assistant Secretary of the Corporation
and delivered to the Trustee.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Principal" means principal amount of a debt security plus the premium,
if any, on the security.
"Proceeding" means the occurrence of a court or governmental agency
or authority having jurisdiction in the premises entering a decree or order
(i) declaring the Corporation or any Subsidiary to be bankrupt or insolvent,
(ii) approving as properly filed a petition seeking reorganization,
arrangement, adjustment, composition of or in respect of the Corporation or
any Subsidiary in an involuntary case under any bankruptcy or similar law for
the benefit of creditors, (iii) appointing a Custodian of the Corporation or
any Subsidiary or of its Property or (iv) for the winding up or liquidation
of the affairs of the Corporation or any Subsidiary, and such decree or order
shall have continued undischarged and unstayed for a period of 30 days.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Redeemable Stock" means any capital stock or other equity interest
which, by its terms (or by the term of any security into which it is convertible
or for which it is exchangeable before the stated maturity of the Securities),
or upon the happening of any event, matures or is mandatorily redeemable, in
whole or in part, prior to the stated maturity of the Securities.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption pursuant to this Indenture and the
Security.
"Redemption Price" means, when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture,
as set forth in the form of Security annexed as Exhibit A hereto.
"Regular Record Date" means the last day (whether or not a Business
Day) of the month preceding the month in which an Interest Payment Date occurs.
"Securities" means the "Increasing Rate Junior Subordinated Notes due
2006" described above and issued under this Indenture (including any Additional
Securities).
"Senior Debt" means the principal of, premium, if any, and interest on
any Indebtedness of the Corporation, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed; unless, in the
case of any particular Indebtedness, the instrument under which such
Indebtedness is created, incurred, assumed or guaranteed expressly provides that
such Indebtedness shall not be senior or superior in right of payment to the
Securities. Without limiting the generality of the foregoing, "Senior Debt"
shall include the Marine Debt.
4
<PAGE>
"Series A Preferred Stock" means the 15% Noncumulative Perpetual
Preferred Stock, Series A, $1.00 par value, of the Corporation.
"Subsidiary" means any corporation of which the Corporation owns,
directly or indirectly, more than 50% of the Voting Stock.
"TIA" means the Trust Indenture Act of 1939, as amended, and as in
effect from time to time.
"Trustee" means the party named as such in this indenture until a
successor replaces it and thereafter means such successor.
"Trust Officer" means any officer within the Corporate Trust Office (or
any successor group) of the Trustee, including any Vice President, any Assistant
Vice President, any Assistant Secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer whom such matter is referred because of his knowledge
of or familiarity with the particular subject.
"Voluntary proceeding" means the occurrence of any of the following:
the Corporation or any Subsidiary commencing a voluntary case, consenting to
the entry of any order of relief in an involuntary case under any bankruptcy
or similar law for the benefit of creditors, seeking or consenting to the
appointment of a Custodian or to the taking possession by a Custodian of it
or of any substantial part of its Property, making an assignment for the
benefit of creditors, failing generally to pay its debts as they become due,
or taking corporate action in furtherance of any of such purposes.
"Voting Stock" means securities of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for corporate directors (or Persons performing
similar functions).
Section 1.02 Other Definitions.
<TABLE>
<CAPTION>
Term Defined in
---- -----------
<S> <C>
"Additional Securities" .............................. Section 2.02
"Code" ............................................... Section 2.03
"Event of Default" ................................... Section 5.01
"Interest Payment Date" .............................. Section 3.01
"Legal Holiday" ...................................... Section 11.07
"Non-Payment Default" ................................ Section 9.03
"Paying Agent" ....................................... Section 2.03
"Payment Default" .................................... Section 9.03
"Payment Blockage Period" ............................ Section 9.03
"Registrar" .......................................... Section 2.03
"Special Record Date" ................................ Section 2.12
</TABLE>
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
5
<PAGE>
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the securities means the Corporation.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by rule of the Commission
under the TIA have the meanings assigned to them thereby.
Section 1.04 Rules of Construction. Unless the context otherwise
requires: (i) a term has the meaning assigned to it; (ii) an accounting term not
otherwise defined has the meaning assigned to it in accordance with GAAP in the
United States at the date of such computation; (iii) "or" is always used
inclusively (for example, the phrase "A" or "B" means "A or B or both," not
"either A or B, but not both"); (iv) words in the singular include the plural,
and in the plural include the singular; (v) provisions apply to successive
events and transactions; and (vi) unless specifically stated, the words
"herein," "hereof," "hereto" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE II
THE SECURITIES
Section 2.01 Form and Dating. The Securities and Trustee's certificate
of authentication shall be substantially in the form of Exhibit A, which is part
of this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication.
Section 2.02 Execution and Authentication. The Securities shall be
executed on behalf of the Corporation by its Chairman of the Board, its
President or one of its Vice Presidents and attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be actual or facsimile.
If an officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. Such manual signature of the Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
6
<PAGE>
Except as otherwise provided in Section 2.06, the Securities will be
issued in global form only registered in the name of the Depository or its
nominee. The Securities will not be issued in definitive form, except as
otherwise provided in Section 2.06, and ownership of the Securities shall be
maintained in book entry form by the Depository for the accounts of
participating organizations of the Depository.
The Trustee shall authenticate (i) Securities for original issue up to
the aggregate principal amount stated in paragraph 5 of the Securities; and (ii)
additional securities issued pursuant to this Indenture as interest on the
Securities (not to exceed $_______) (the "Additional Securities"), in each case
upon an Order of the Corporation. The aggregate principal amount of Securities
outstanding at any time may not exceed the amount as stated in paragraph 5 of
the Securities except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Corporation to authenticate Securities, which authenticating agent shall be
compensated by the Corporation. An authenticating agent may authenticate
Securities whenever the Trustee may do so, other than the authentication of
Securities issued upon original issue or pursuant to Section 2.07. Except as
provided in the previous sentence, 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
Corporation or an Affiliate.
Section 2.03 Registrar and Paying Agent. The Corporation shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where Securities
may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Corporation
may appoint one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. The Corporation or any of its Subsidiaries
may act as Paying Agent or Registrar.
The Corporation shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Corporation shall
give prompt written notice to the Trustee of the name and address of any such
Agent and any change in the address of such Agent. If the Corporation fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Corporation shall provide to the Trustee for delivery to holders
all materials required to be delivered to holders by the Corporation with
respect to the Securities under the Internal Revenue Code of 1986, as amended
(the "Code") or any Treasury regulations issued thereunder, and such materials
as are required to be delivered to holders by any state or local authority. The
Trustee shall deliver such materials promptly following its receipt thereof
from the Corporation. The Corporation's agreement with any Paying Agent shall
provide that the Paying Agent shall comply with all requirements of the Code,
and the Treasury regulations thereunder, with respect to withholding from any
payment made on the Securities of any withholding taxes imposed thereon. All
such withholding duties shall be performed by the Trustee if it is the Paying
Agent. The Corporation shall make all filings required by any governmental
authority with respect to payments on the Securities, and promptly deliver to
the Trustee copies thereof.
The Corporation initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.04 Notice of Payment; Payment by the Corporation to the
Trustee; Paying Agent to Hold Money in Trust. On or prior to the fourth Business
Day preceding each due date for the payment of principal of, or premium (if any)
or interest on, any of the Securities, the Corporation shall deliver written
notice to the Trustee or Paying Agent, as the case may be, of the type and
amount of any payment and the date such payment is to be made on behalf of the
Corporation. On or prior to the Business Day immediately preceding each due date
for the payment of principal of, or premium (if any) or interest on, any of the
Securities, the Corporation shall
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deposit with the Trustee or Paying Agent, as the case may be, in immediately
available funds a sum sufficient to pay the principal, premium (if any) or
interest so becoming due.
The Corporation will require each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of or premium (if any) or interest on the Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Corporation
(or any other obligor upon the Securities) in the making of any payment
of principal, premium (if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
Section 2.05 Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Corporation shall furnish to the Trustee at least 10 days before
each Interest Payment Date and at such other times as the Trustee may request in
writing all information in the possession or control of the Corporation or any
Paying Agent as to the names and addresses of the Securityholders in such form
and as of such date as the Trustee may reasonably require.
Section 2.06 Transfer and Exchange. No transfer or exchange of
Securities may be effected unless the Securities are presented to the
Registrar or a co-Registrar with a request to register the transfer of such
Securities or to exchange them for an equal principal amount of Securities of
authorized denominations. The Registrar shall then register the transfer or
make the exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Corporation shall
execute and the Trustee shall authenticate Securities at the Registrar's
request. The Trustee, the Registrar and the Paying Agent shall be entitled to
rely on such representation in authenticating, registering the transfer or
exchange of, or making of payments on, the Securities.
The Registrar shall not be required (i) to issue, register the transfer
of or exchange Securities during a period beginning at the opening of 15
Business Days before the day of any selection of Securities for redemption under
Section 10.04 and ending at the close of business on the day of such selection,
or (ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except for the unredeemed portion of any
Security being redeemed in part.
Notwithstanding anything to the contrary contained herein, any global
Security shall be exchangeable for definitive securities only if (i) the
Depository is at any time unwilling, unable or ineligible to continue as
Depository and a successor depository is not appointed by the Corporation within
90 days of the date the Corporation is so informed in writing, (ii) the
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Corporation executes and delivers to the Trustee an Order of the Corporation to
the effect that such global Security shall be so exchangeable, or (iii) an Event
of Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of an interest in a global Security are entitled to exchange
such interest for definitive Securities, then without unnecessary delay but in
any event not later than the earliest date on which such interest may be so
exchanged, the Corporation shall deliver to the Trustee definitive Securities in
such form and denominations as are required by or pursuant to this Indenture,
containing identical terms and in aggregate principal amount equal to the
principal amount of, such global Security, executed by the Corporation. On or
after the earliest date on which such interests may be so exchanged, such global
Security shall be surrendered by the Depository, and in accordance with
instructions given to the Trustee and the Depository (which instructions shall
be in writing but need not be contained in or accompanied by an Officer's
Certificate or be accompanied by an Opinion of Counsel), as the Corporation's
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities as described above without charge. The Trustee shall authenticate and
make available for delivery, in exchange for each portion of such surrendered
global Security, a like aggregate principal amount of definitive Securities of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which shall be in the form of fully registered
Securities; provided, however, that no such exchanges may occur during a period
beginning at the opening of 15 Business Days before the day of any selection of
Securities for redemption under Section 10.04 and ending on the relevant
Redemption Date. Promptly following any such exchange in part, such global
Security shall be returned by the Trustee to such Depository, or such other
Depository referred to above in accordance with the instructions of the
Corporation referred to above. If a definitive Security is issued in exchange
for any portion of a global Security after the close of business at the
Corporate Trust Office on or after (i) any Regular Record Date for such Security
and before the opening of business at such Corporate Trust Office on the next
Interest Payment Date or (ii) any Special Record Date for such Security and
before the opening of business at such Corporate Trust Office on the related
proposed date for payment of interest or defaulted interest, as the case may be,
interest shall not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Security, but shall be payable
on such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security shall be payable in accordance with the provisions of this Indenture.
Section 2.07 Replacement Securities. If the Holder of a mutilated
Security surrenders such Security to the Trustee, the Corporation shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Corporation shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are met. If
required by the Trustee or the Corporation, such Holder shall provide an
indemnity bond sufficient in the judgment of both the Corporation and the
Trustee to protect the Corporation, the Trustee, any Agent or any authenticating
agent from any loss which any of them may suffer if a Security is replaced. The
Corporation and the Trustee may charge for its expenses in replacing a Security.
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Every replacement Security issued under this Section shall constitute
an obligation of the Corporation, entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities.
Section 2.08 Outstanding Securities. The Securities outstanding at any
time are all the Securities 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 Security is replaced pursuant to Section 2.07, is ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced security is held by a bona fide purchaser.
If Securities are considered paid under Section 3.01, they cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Corporation or
an Affiliate of the Corporation holds the Security.
Section 2.09 Treasury Securities. In determining whether the Holders of
the required principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Corporation or an Affiliate of the
Corporation shall be considered as though they are not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which the
Trustee actually knows are so owned shall be so disregarded.
Section 2.10 Temporary Securities. Until definitive Securities are
ready for delivery, the Corporation may prepare and the Trustee shall, upon
Order of the Corporation, authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Corporation considers appropriate for temporary
Securities including, without limitation, a legend stating that such temporary
Security is a temporary Security. Without unreasonable delay, the Corporation
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until such exchange, such temporary
Securities shall be entitled to the same rights, benefits and privileges as the
definitive Securities.
Section 2.11 Cancellation. The Corporation at any time may deliver
Securities to the Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange, or payment. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange payment, replacement or
cancellation and shall destroy canceled Securities and deliver a certificate of
such destruction to the Corporation, unless the Corporation directs the Trustee
to deliver canceled Securities to the Corporation. The Corporation may not issue
new Securities to replace securities that it has paid or that have been
delivered to the Trustee for cancellation.
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Section 2.12 Defaulted Interest. If the Corporation fails to make a
payment of interest on the Securities on the due date therefor or within the
grace period set forth in Section 5.01(1), it shall pay such interest thereafter
in any lawful manner. It may pay such interest, plus any interest lawfully
payable on it, to the Persons who are Securityholders on a subsequent special
record date (a "Special Record Date"). The Corporation shall fix the Special
Record Date and related payment date. At least 10 days before the Special Record
Date, the Corporation shall mail to Securityholders a notice that states the
Special Record Date, related payment date, and amount of such interest to be
paid.
Section 2.13 Certain Limitation on Securities. Notwithstanding anything
to the contrary in this Indenture (or in any related document):
(a) in the event that the obligations represented by the
Securities are assumed in full by another corporation, which shall
succeed by merger or otherwise to substantially all of the assets and
the business of the Corporation, and payment or provision for payment
shall have been made in respect of all matured installments of interest
upon the Securities together with all matured installments of principal
and of premium (if any) on such Securities which shall have become due
otherwise than by acceleration, then any default caused by the
appointment of a receiver for the Corporation shall be deemed to have
been cured, and any declaration consequent upon such default declaring
the principal, premium (if any) and interest on the Securities to be
immediately due and payable shall be deemed to have been rescinded.
(b) The Securities are unsecured by the assets of the
Corporation, or any of its affiliates.
(c) The Securities are subordinated and junior in right of
payment to the Corporation's other obligations to its general and
secured creditors. Notwithstanding anything to the contrary herein,
amounts due to the Trustee pursuant to Section 6.07 shall not be
subordinated and junior in right of payment to the Corporation's other
obligations to its general and secured creditors.
(d) The Securities are ineligible as collateral for a loan by
the Corporation.
ARTICLE III
COVENANTS
Section 3.01 Payment of Securities. The Corporation shall punctually
pay the principal of and premium (if any) and interest on the Securities on the
dates and in the manner provided in the Securities. Principal, premium (if any)
and interest shall be considered paid on the date due if the Trustee or all
Paying Agents hold on that date money designated for and sufficient to pay all
principal, premium (if any) and interest then due.
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Through and including January 15, 2002, on each Interest Payment Date (as
defined below), the Corporation may, at its option and in its sole discretion,
in lieu of the payment of interest on the Securities in whole or in part in
cash, pay such interest on the Securities through the issuance of Additional
Securities in an aggregate principal amount equal to the amount of interest that
would otherwise be payable with respect to the Securities in cash; provided,
however, that the Corporation may issue Additional Securities only in
denominations of $100 and integral multiples of $100. After January 15, 2002,
the Corporation shall pay interest on the Securities in cash. The Corporation
shall notify the Trustee in writing of its election to pay interest on the
Securities through the issuance of Additional Securities and the aggregate
amount of Additional Securities to be issued not less than 10 nor more than 45
days prior to the record date for the Interest Payment Date on which Additional
Securities will be issued. On each such Interest Payment Date, the Trustee shall
authenticate Additional Securities for original issuance to each Holder on the
relevant record date in the aggregate principal amount required to pay such
interest. Each Additional Security is an additional obligation of the
Corporation and shall be governed by, and entitled to the benefits of, this
Indenture and shall be subject to the terms of this Indenture and shall be pari
passu with and subject to the same terms (including the rate of interest from
time to time payable thereon) as the Securities (except, as the case may be,
with respect to the issuance date and aggregate principal amount). The
Corporation will pay interest semi-annually in arrears on January 15 and July 15
of each year (each an "Interest Payment Date"), commencing on July 15, 1999, the
first Interest Payment Date. Interest on the Securities will accrue from the
most recent Interest Payment Date to which interest has been paid or, if no
interest has been paid, from the date hereof. The Corporation shall pay interest
on global Securities through the issuance of Additional Securities only in
accordance with the rules and regulations of the Depository as in effect from
time to time.
The Corporation shall pay interest on overdue principal at the rate borne
by the Securities for the last semi-annual interest period; it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
Section 3.02 Dividends and Certain Other Elements. The Corporation shall
not (i) declare or pay or set apart any funds for the payment of dividends on,
or make any other distribution in respect of, any shares of its capital stock
(other than dividends or distributions payable solely in shares of its capital
stock) or (ii) make, or permit any Subsidiary or Affiliate to make, any payment
on account of the purchase, redemption or other acquisition or retirement of any
such shares or obligations, if at the time of such action and after giving
effect thereto a Default or an Event of Default shall have occurred and be
continuing.
Section 3.03 Transactions with Affiliates. Neither the Corporation nor any
Subsidiary will pay, directly or indirectly, any funds to or for the account of,
make any investment in, enter into any transaction including, without
limitation, the purchase, sale or exchange of Property or the rendering of any
service, or effect any transaction in connection with any joint enterprise or
other joint arrangement with, any Affiliate, except that the Corporation or any
Subsidiary may (i) make such payments and investments or enter into such
transactions on terms and conditions at least as favorable to the Corporation or
such Subsidiary, as the case may be, as those that could be obtained in a
comparable arm's-length transaction with a Person not an Affiliate (as
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determined in good faith by the Board of Directors, whose determination shall be
conclusive), (ii) make payments or provide compensation (including the extension
of credit upon such favorable terms as are permitted by applicable laws and
regulation) for services rendered by any Affiliate who is an officer, director
or employee of the Corporation or any Subsidiary and (iii) make payments to RB
Management Company, LLC for management services pursuant to the Management
Agreement dated as of June 28, 1996 by and between the Corporation and RB
Management Company, LLC, as said Agreement may be modified, amended or extended
from time to time; and provided, further, that for purposes of this Section, the
term "Affiliate" shall not include, in the case of the Corporation, any
Subsidiary, or, in the case of any Subsidiary, the Corporation or another
Subsidiary.
Section 3.04 Reports by Corporation.
(a) The Corporation shall file with the Trustee within 5 days
after it files them with the Commission copies of the annual and
quarterly reports and of the information, documents and other reports
which the Corporation files, or which are filed in respect of the
Corporation, with the Commission pursuant to Section 13 of the Exchange
Act and the regulations of the Commission thereunder, or any other
rules and regulations of the Commission under the Exchange Act as may
from time to time be in effect. If the Corporation is not subject to
the requirements of Section 13 of the Exchange Act, the Corporation
shall file with the Trustee, within 15 days after it would have
otherwise been required to file pursuant to the Exchange Act, financial
statements including any notes thereto, and a "Management's Discussion
and Analysis of Financial Condition and Results of Operations," both
comparable to that which the Corporation would have been required to
include in the annual and quarterly reports, information documents or
other reports (under rules currently in effect on the date hereof)
which the Corporation would have been required to file pursuant to
Section 13 of the Exchange Act.
(b) While any of the Securities are outstanding, the
Corporation shall mail to each Holder copies of the annual and
quarterly reports of the Corporation that it is required to file with
the Trustee pursuant to Section 3.04(a) (or summaries thereof) within
30 days after such filing is required to be made.
Section 3.05 Maintenance of Properties; Insurance. The Corporation will
keep, and will cause each Subsidiary to keep, all Property useful and necessary
in its business in good working order and condition. The Corporation will
maintain and will cause each Subsidiary to maintain (either in the name of the
Corporation or in such Subsidiary's own name) with financially sound and
reputable insurance companies, insurance on all its Property in at least such
amounts as are usually insured against in the same general area by companies of
established repute engaged in a similar business.
Section 3.06 Maintenance of Books and Records. The Corporation will keep,
and will cause each Subsidiary to keep, proper books of record and account in
which full and correct entries will be made of all its business transactions,
and will reflect in its financial statements adequate accruals and
appropriations to reserves. The Corporation shall cause its books of record
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and account and those of each of its Subsidiaries to be examined on a
consolidated basis by a nationally recognized firm of independent public
accountants not less frequently than annually for purposes of preparing audited
consolidated financial statements and shall not make any change in the
accounting principles applied to its financial statements not concurred in by
such firm or firms. The Corporation shall prepare its financial statements in
accordance with GAAP consistently applied, except as otherwise stated therein.
Section 3.07 Conduct of Business. The Corporation shall, and shall cause
each of its Subsidiaries to, comply with all statutes, laws, ordinances or
government rules and regulations to which it is subject and to obtain, preserve
and renew any licenses, permits, franchisees or other governmental
authorizations necessary to the ownership or operation of its Properties or to
the conduct of its business, if failure to so comply, obtain, preserve and renew
adversely affects, or so far as the Corporation can at the time foresee is
reasonably likely to adversely affect, in any material respect the business,
prospects, earnings, Properties or condition, financial or otherwise, of the
Corporation and its Subsidiaries taken as a whole.
Section 3.08 Taxes and Claims. The Corporation shall, and shall cause
each of its Subsidiaries to, pay prior to delinquency:
(i) all taxes, assessments and governmental charges or levies
imposed upon it or its Property, and
(ii) all claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons which, if
unpaid, might result in the creation of a lien upon its Property;
Provided that items in clauses (i) and (ii) need not be paid while being
contested in good faith by appropriate proceedings, and provided, further, that
adequate book reserves (in the opinion of the Corporation's independent
accountants) have been established with respect thereto; and provided, further,
that the owning company's title to, and its right to use, its Property is not
materially adversely affected thereby.
Section 3.09 Money for Security Payments to Be Held in Trust. If the
Corporation shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal of or premium (if any) and interest on the
Securities, segregate and hold in trust in a trust or special deposit account
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium (if any) or interest so becoming due until such sum shall be
paid to such Person or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Corporation shall have one or more Paying Agents, it will, on
or prior to each date for the payment of the principal of or premium (if any) or
interest on the Securities, deposit with the Paying Agents sums sufficient to
pay the principal, premium (if any) or interest so becoming due, such sums to be
held in trust for the benefit of the Persons entitled to such
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payments pursuant to the agreement referred to in Section 2.04; and, unless such
Paying Agent is the Trustee, the Corporation will promptly notify the Trustee of
its action or failure so to act.
For the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, the Corporation may at any time pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Corporation or such Paying Agent, such sums to be held by the Trustee, the
Corporation or such Paying Agent, as the cast may be, shall be released from all
further liability with respect to such money.
Section 3.10 Compliance Certificate. The Corporation shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Corporation,
an Officers' Certificate stating that a review of the activities of the
Corporation and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
the Corporation has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such officer signing such
Certificate, that to the best of his knowledge the Corporation has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which
he may have knowledge and specifying what action the Corporation 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 on the Securities are prohibited.
The Corporation will, so long as any of the Securities are outstanding,
deliver to the Trustee at its Corporate Trust Office, forthwith upon becoming
aware of any Default, Event of Default or default in the performance of any
covenant, agreement or condition contained in this Indenture, an Officers'
Certificate describing such Default, Event of Default or default and specifying
what action the Corporation is taking or proposes to take with respect thereto.
Any such Certificate delivered under this Section 3.10 shall comply with Section
314 of the TIA.
Section 3.11 Continued Existence. Subject to Article IV, the
Corporation will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.
ARTICLE IV
SUCCESSORS
Section 4.01 When Corporation May Merge, etc. Subject to Section 2.13,
the Corporation shall not consolidate or merge with or into, or transfer, sell,
lease or convey all or substantially all of its Property to, any Person unless:
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(i) the corporation formed by or surviving any such
consolidation or merger, or the Person to which such transfer, sale,
lease or conveyance shall have been made, unconditionally assumes by
supplemental indenture all the obligations of the Corporation under the
Securities and this Indenture including but not limited to the due and
punctual payment of the principal of and interest on all the
Securities;
(ii) immediately after the transaction, the Consolidated
Tangible Capital of the corporation formed by or surviving such
consolidation or merger, or the Person to which such transfer, sale,
lease or conveyance has been made, shall not be a negative amount; and
(iii) immediately after the transaction no Default or Event of
Default exists.
The Corporation shall deliver to the Trustee prior to 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 and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
The surviving corporation shall be the successor Corporation, but the
predecessor Corporation in the case of a transfer, sale, lease or conveyance
shall not be released from the obligation to pay the principal of and interest
on the Securities.
The parties hereto recognize that the remedies otherwise provided in this
Indenture may not provide an adequate remedy in the case of noncompliance by the
Corporation under this Section. The parties hereto therefore agree that, in any
such case of noncompliance, the Trustee shall be entitled to seek an injunction
or specific performance of the Corporation's obligations under this Section, or
any other equitable remedies, in addition to other remedies provided in this
Indenture.
Section 4.02 Successor Substituted. Upon any consolidation or merger, or
any transfer, sale, lease or conveyance of all or substantially all of the
assets of the Corporation in accordance with Section 4.01, the successor Person
formed by such consolidation or into which the Corporation is merged or to which
such transfer, sale, lease or conveyance is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Corporation
under this Indenture with the same effect as if such successor had been named as
the Corporation herein.
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ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default. An "Event of Default" occurs if:
(1) the Corporation defaults in the payment of interest on any
Security when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Corporation defaults in the payment of the principal
of or premium on any Security (including any mandatory redemption
payment) when the same becomes due and payable at maturity or upon
redemption, acceleration or otherwise;
(3) the Corporation fails to comply with any of its other
agreements or covenants in or provisions of the Securities or this
Indenture, and such default continues for a period of 30 days after the
Trustee notifies the Corporation, or the Holders of at least 25% in
principal amount of the then-outstanding Securities notify the
Corporation and the Trustee, of such Default;
(4) a default (other than default under any mortgage indenture
or instrument securing or evidencing any indebtedness secured by an
interest in a particular real estate development project, or under any
guarantee of payment of indebtedness which guarantee is secured by an
interest in a particular real estate development project, in either
case which is expressly stated to be without recourse to the
Corporation or any of its Subsidiaries or which is a purchase money or
similar mortgage indebtedness that is without recourse to the
Corporation or any of its Subsidiaries under applicable state law from
the date of its execution) occurs under any instrument or any other
obligation representing Indebtedness of the Corporation or any
Subsidiary if (i) the effect of such default is to permit the
acceleration of such Indebtedness and (ii) the aggregate principal
amount of such indebtedness as to which any such default or defaults
shall have occurred exceeds $10 million;
(5) there is a Proceeding;
(6) There is a Voluntary Proceeding;
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(7) a Custodian shall be appointed for the Corporation; or
(8) one or more judgments have been rendered against the
Corporation or any Subsidiary in an aggregate amount exceeding $10
million which judgments remain undischarged for a period of 60 days
after all rights to directly review such judgment, whether by appeal or
writ, have been exhausted or have expired.
Section 5.02 Acceleration: Limitations on Acceleration. Subject to Section
2.13, if an Event of Default (other than an Event of Default specified in clause
(5) or (6) as such clauses relate to the Corporation or clause (7) of Section
5.01) occurs and is continuing, the Trustee by notice to the Corporation, or the
Holders of at least 25% in principal amount of the then-outstanding Securities
by notice to the Corporation and the Trustee, may declare the principal of an
accrued interest on all the securities to be due and payable. Upon such
declaration the principal and interest shall be due and payable immediately
without any presentment, demand, protest or notice to the Corporation, all of
which the Corporation expressly waives. Subject to Section 2.13, if an Event of
Default specified in clause (5) or (6) as such clauses relate to the Corporation
or clause (7) of Section 5.01 occurs, such an amount shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
The Holders of a majority in principal amount of the then-outstanding
Securities by notice to the Trustee may rescind an acceleration and its
consequences if:
(1) the rescission would not conflict with any judgment or
decree;
(2) all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely
because of the acceleration;
(3) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of
acceleration, has been paid; and
(4) all payments then due the Trustee and any predecessor
Trustee under Section 6.07 have been made.
Section 5.03 Other Remedies. Subject to Section 2.13, if an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy by
an action at law, suit in equity or other appropriate proceeding to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon a Default or Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in such Default or Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 5.04 Waiver of Default. The Holders of at least a majority in
principal amount of the then-outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences except a
continuing Default or Event of Default in the payment of the principal of or
interest on any Security. No such waiver shall extend to any subsequent or other
Default or Event of Default.
Section 5.05 Control by Majority. The Holders of a majority in
principal amount of the then-outstanding Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law, regulation or this
Indenture, is unduly prejudicial to the rights of other Securityholders or would
subject the Trustee to personal liability.
Section 5.06 Limitation on Suits. A Securityholder may pursue a remedy
with respect to this Indenture or the Securities only if:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the
then-outstanding Securities make a request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer(s) to the Trustee indemnity
satisfactory to the Trustee against any loss, liability at expense;
(4) the Trustee does not comply with the request within 60
days after the receipt of the notice, the request and the offer of
indemnity, and
(5) during such 60-day period the Holders of a majority in
principal amount of the then-outstanding Securities do not give the
Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 5.07 Rights of Holders to Receive Payment. Subject only to Article
IX, Section 2.13 and the provisions of Section 5.02 regarding rescission of
acceleration, notwithstanding any other provision of this Indenture, the right
of any Holder of a Security to receive payment of principal of and premium (if
any) and interest on the Security on or after the respective due dates
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expressed in the Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
Section 5.08 Collection Suit by Trustee. If an Event of Default
specified in clause (1) or (2) of Section 5.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Corporation for the whole amount of principal, premium (if any) and
interest remaining unpaid on the Securities and any amounts due the Trustee
under Section 6.07.
Section 5.09 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Corporation, its creditors
or its Property.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
Section 5.10 Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.07;
Second: to holders of Senior Debt to the extent required by
Article IX;
Third: to Securityholders for amounts due and unpaid on the
Securities for principal, premium (if any) and interest, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal, premium (if any) and
interest, respectively; and
Fourth: to the Corporation, its successors or assigns, or to
whomever may be legally entitled to receive the remainder, or as a
court of competent jurisdiction may determine.
The Trustee may fix a record date and a payment date for any payment to the
Securityholders pursuant to this Article.
Section 5.11 Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as 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
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does not apply to a suit by the Trustee, a suit by a Holder for the enforcement
of rights set forth in Section 5.06, or a suit by Holders of at least 15% in
principal amount of the then-outstanding Securities.
ARTICLE VI
TRUSTEE
Section 6.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others;
and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture
but shall not be required to verify the accuracy of the
contents of such certificates or opinions. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action or failure to act, or its own willful misconduct,
except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
5.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this
Section.
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(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Corporation.
Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
Section 6.02 Rights of Trustee:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Certificate or Opinion.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers.
Section 6.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Corporation or an Affiliate 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 6.10 and 6.11.
Section 6.04 Disclaimer. The Trustee makes no representation as to the
validity or adequacy of this Indenture, the Securities or the Offering Circular
of the Corporation relating to the Securities, it shall not be accountable for
the Corporation's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities or the Offering Circular of the
Corporation relating to the Securities other than its authentication.
Section 6.05 Notice of Defaults. If a Default or Event of Default has
occurred and is continuing of which a Trust Officer of the Trustee has actual
knowledge, the Trustee shall mail to Securityholders a notice of the Default or
Event of Default within 90 days after it becomes known to the Trustee. Except in
the case of a Default or Event of Default in payment of principal of, premium
(if any) or interest on any Security, the Trustee may withhold notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interest of Securityholders.
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Section 6.06 Reports by Trustee to Holders.
(a) Within 60 days after each April 15, the Trustee shall mail
to each Securityholder and the Corporation a brief report dated as of
such April 15 that complies with TIA Section 313(a). The Trustee shall
also comply with TIA Section 313(b)(2).
(b) In lieu of the foregoing reports, so long as this
Indenture is not qualified under the TIA, the Trustee may transmit by
mail to the Corporation a statement as to its qualifications and
eligibility hereunder, and shall transmit by mail a copy of such
statement to such Holders who have previously furnished a written
request therefor to the Trustee.
Section 6.07 Compensation and Indemnity. The Corporation shall pay to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Corporation shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it. Such expenses
shall include the reasonable compensation and out-of-pocket expenses of the
Trustee's agents and counsel.
The Corporation shall indemnify the Trustee against any loss or
liability incurred by it in connection with its services hereunder except as set
forth in the next paragraph. The Trustee shall notify the Corporation promptly
of any claim for which it may seek indemnity. The Corporation shall settle or
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel, at the expense of the Corporation.
The Corporation need not reimburse any expense or indemnity against any
loss or liability incurred by the Trustee through gross negligence or bad faith.
The Corporation's payment obligations under this Section shall not be
subordinated and junior in right of payment to the Corporation's other
obligations to its general and secured creditors.
To secure the Corporation's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or Property held
or collected by the Trustee, except that held in trust to pay principal of,
premium (if any) and interest on particular securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clauses (5), (6) and (7) of Section 5.01 occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy or similar law for the benefit
of creditors.
The Corporation's payment obligations to the Trustee pursuant to
this Section 6.07 shall survive the discharge of this Indenture and the
resignation or removal of the Trustee.
Section 6.08 Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section.
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The Trustee may resign by so notifying the Corporation. The Holders of
a majority in principal amount of the then-outstanding Securities may remove the
Trustee by so notifying the Trustee and the Corporation. The Corporation may
remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
bankruptcy or similar law for the benefit of creditors;
(3) a custodian or public officer takes charge of the Trustee
or its Property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Corporation 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 Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Corporation.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Corporation or
the Holders of at least 10% in principal amount of the then-outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Corporation. Thereupon the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
Property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 6.07.
Section 6.09 Successor Trustee by Merger. 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 6.10 Eligibility; Disqualification. This Indenture shall always
have a Trustee who satisfies the requirements of TIA Section 310(a)(1). The
Trustee shall always have a combined capital and surplus of at least $10 million
as set forth in its most recent published annual report of condition. The
Trustee is subject to TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9).
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Section 6.11 Preferential Collection of Claims Against Corporation. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall comply with TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
SATISFACTION AND DISCHARGE
Section 7.01 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to (i) any rights of
substitution, registration of transfer and exchange of Securities herein
expressly provided for, (ii) rights hereunder of Holders to receive payments of
principal of, or premium (if any) or interest on, the Securities and (iii) the
rights, obligations and immunities of the Trustee hereunder, including without
limitation, its rights under Section 6.07), and the Trustee, on the demand and
at the expense of the Corporation, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Article II, and (ii) Securities for the payment
of which money has theretofore been deposited in trust with
the Trustee or any Paying Agent or segregated and held in
trust by the Corporation and thereafter repaid to the
Corporation or discharged from such trust, as provided in
Section 7.03) have been delivered to the Trustee for
cancellation; or
(B) the principal of all such Securities not
theretofore delivered to the Trustee for cancellation has
become due and payable and the Corporation has deposited or
caused to be deposited in trust with the Trustee, solely for
the benefit of the Holders, funds in an amount sufficient to
pay and discharge the entire Indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation;
(2) the Corporation has irrevocably paid or caused to be
irrevocably paid all other sums payable hereunder by the Corporation;
and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein to be complied with by the Corporation
relating to the satisfaction and discharge of this Indenture have been
complied with.
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Section 7.02 Application of Trust Money. The Trustee shall hold in
trust money deposited with it pursuant to Section 7.01. It shall apply the
deposited money through the Paying Agents and in accordance with the Indenture
to the payment of principal and Interest, on the Securities. Money so held in
trust shall not be subject to Article IX.
Section 7.03 Repayment to Corporation. Any money deposited with the
Trustee or any Paying Agent, or then held by the Corporation in trust for the
payment of principal, premium (if any) or interest that remains unclaimed for
two years after such principal, premium (if any) or interest has become due and
payable shall be paid to the Corporation upon request, or, if then held by the
Corporation, shall be released from such trust; provided, however, that the
Trustee or such Paying Agent, may, at the expense of the Corporation, cause to
be published once in a newspaper of general circulation in the City of New York
or mail to each such Holder, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Corporation. After such money has been paid to
the Corporation or released from trust, Securityholders entitled to the money
must look to the Corporation for payment as general creditors unless an
applicable abandoned property law designates another person.
ARTICLE VIII
AMENDMENTS
Section 8.01 Without Consent of Holders. The Corporation and the
Trustee may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 4.01;
(3) to provide for definitive Securities in exchange for
global Securities;
(4) to make any change that does not adversely affect the
legal rights hereunder of any Securityholder; or
(5) to take any action necessary to qualify this Indenture
under the TIA.
Section 8.02 With Consent of Holders. The Corporation and the Trustee
may amend this Indenture or the Securities with the written consent of the
holders of at least a majority in principal amount of the then-outstanding
Securities. However, without the consent of each Securityholder affected, an
amendment under this Section may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
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(2) reduce the rate of or change the time for or in any way
affect the terms of payment of interest, including default interest, on
any Security;
(3) reduce the principal of or change the fixed maturity of
any Security, or change the date on which any Security may be subject
to redemption, or reduce the Redemption Price therefor;
(4) reduce the rate of or change the time for or in any way
affect the terms of payment of premium (if any) payable upon redemption
or maturity of any Security;
(5) make any Security payable in money other than that stated
in the Security;
(6) make any change in Section 5.04 or 5.07 or the second
sentence of this Section 8.02; or
(7) make any change in Article IX that adversely affects the
rights of any Securityholder.
After an amendment under this Section becomes effective, the
Corporation shall mail to Securityholders a notice briefly describing the
amendment.
Section 8.03 Compliance with Trust Indenture Act. Every amendment to or
supplement of this Indenture or the Securities shall comply with the TIA as then
in effect.
Section 8.04 Revocation and Effect of Consents. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same date as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his security or portion of a
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. An amendment or waiver becomes effective
in accordance with its terms and thereafter binds every Securityholder.
Section 8.05 Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of the Securities, the Trustee may
require the Holders of such Securities to deliver them to the Trustee. The
Trustee may place an appropriate notation on such Securities about the changed
terms and return them to such Holders. Alternatively, the Corporation in
exchange for all outstanding securities may issue and the Trustee shall
authenticate new Securities that reflect the changed terms.
Section 8.06 Trustee Protected. The Trustee shall sign any amendment,
supplement or waiver if requested by the Corporation, so long as the same
complies with the requirements of this indenture and in doing so shall be
entitled to receive, and shall be fully protected in relying upon an opinion of
counsel stating that the execution of any amendment, supplement or waiver
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authorized pursuant to this Article is authorized or permitted by this
Indenture, is not inconsistent herewith and is valid and binding on the
Corporation in accordance with its terms. However, the Trustee need not sign any
amendment, supplement or waiver that adversely affects its rights, duties,
liabilities or immunities. The Corporation may not sign an amendment or
supplement until its Board of Directors approves it (a certified copy of the
resolutions in which such approval is given shall be delivered to the Trustee
prior to its signing any amendment, supplement or waiver).
ARTICLE IX
SUBORDINATION
Section 9.01 Agreement to Subordinate. The Corporation, agrees, and
each Holder by accepting a Security agrees, that the indebtedness evidenced
by the Securities (including principal, premium, if any, and interest and any
other amounts payable to holders of the Securities pursuant to this Indenture
or the Securities) is subordinated in right of payment, to the extent and in
the manner provided in this Article IX to the prior payment in full of all
Senior Debt, and that the subordination is for the benefit of the holders of
the Senior Debt. Notwithstanding anything to the contrary herein, amounts due
to the Trustee pursuant to Section 6.07 shall not be subordinated and junior
in right of payment to the Corporation's other obligations to its general and
secured creditors.
Section 9.02 Liquidation; Dissolution; Bankruptcy. Upon any (i)
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Corporation or its property, (ii) assignment for the benefit of
creditors or any marshaling of the assets and liabilities of the Corporation or
(iii) distribution to creditors of the Corporation in a liquidation or
dissolution of the Corporation:
(1) holders of Senior Debt shall be entitled to receive
payment in full in cash or, at the option of the holders of the Senior
Debt, cash equivalents of Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in the
applicable Senior Debt whether or not a claim therefor is allowed) to
the date of payment on the Senior Debt before Holders shall be entitled
to receive any payment of principal or interest on the Securities; and
(2) until the Senior Debt (as provided in subsection (1)
above) is paid in full in cash or, at the option of the holders of the
Senior Debt, cash equivalents, any distribution to which Holders would
be entitled but for this Article IX shall be made to holders of Senior
Debt, as their interests may appear, except that Holders may receive
securities that are subordinated to Senior Debt (and to any securities
issued in exchange for Senior Debt) to at least the same extent as the
Securities are subordinated to Senior Debt.
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For purposes of this Article IX, a distribution may consist of cash,
securities or other property, by setoff or otherwise.
The consolidation of the Corporation with, or the merger of the
Corporation into, another corporation or the liquidation or dissolution of the
Corporation following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article IV shall not be deemed a dissolution, winding up, liquidation
or reorganization for the purposes of this Section 9.02 if the corporation
formed by such consolidation or into which the Corporation is merged or the
Person which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer comply with the conditions set
forth in Article IV.
Section 9.03 Default on Senior Debt. Upon the final maturity of any
Senior Debt by lapse of time, acceleration or otherwise, all such Senior Debt
shall first be paid in full in cash, or such payment duly provided for in cash
or in a manner satisfactory to the holders of such Senior Debt, before any
payment is made by the Corporation or any Person acting on behalf of the
Corporation on account of the principal, premium (if any) or interest of the
Securities.
Until all Senior Debt has been paid in full, in cash or cash
equivalents, the Corporation may not, directly or indirectly, make any payment
of principal, premium (if any) or interest on the Securities and may not acquire
any Securities for cash or property or make any other distribution with respect
to the Securities if:
(i) a default in the payment of the principal, premium (if
any) or interest or the payment of other amounts due under or in
connection with any Senior Debt occurs and is continuing (a "Payment
Default") unless and until such default has been cured or waived; or
(ii) a default, other than a Payment Default, on any
Senior Debt occurs and is continuing that then permits the holders
(or the agent) of such Senior Debt under the terms thereof to
accelerate its maturity (a "Non-Payment Default"), and such default
is either the subject of judicial proceedings or the Trustee and
such Paying Agent receive a notice of the default from a person who
may give it pursuant to Section 9.11 at least two Business Days
prior to the relevant payment date; provided, however, that only one
such notice relating to the same event of default or any other
default existing at the time of such notice under the Senior Debt
may be given during any 365 consecutive day period.
The Corporation shall resume payments on the Securities and may acquire
them upon the earlier of (a) when the default is cured or waived or (b) in the
case of a default referred to in Section 9.03(ii) above, the 179th day after the
receipt of notice by the Trustee or the Paying Agent (with respect to a
Non-Payment Default, such period of time shall be hereinafter referred to as a
"Payment Blockage Period").
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In addition, no Non-Payment-Default which existed or was continuing
on the date of the commencement of any Payment Blockage Period with respect
to the Senior Debt and which was known to the holders (or agent) of such
Senior Debt on such date of commencement shall be made the basis for the
commencement of a second Payment Blockage Period by the holders (or the
agent) of such Senior Debt whether or not within a period of 365 consecutive
days unless and until all scheduled payments of principal, premium (if any)
or interest then due and payable have been made on the Securities.
Section 9.04 No Suspension of Remedies. Nothing contained in this
Article IX shall limit the right of the Trustee or the Holders to take any
action to accelerate the maturity of the Securities pursuant to Section 5.02 or
to pursue any other rights or remedies hereunder or under applicable law;
provided, however, that all Senior Debt of the Corporation then due and payable,
or which thereafter is declared to be, or shall otherwise become, due and
payable, pursuant to its terms (whether by acceleration or otherwise) shall
first be paid in full in cash or, at the option of the holders of Senior Debt,
cash equivalents before the Holders or the Trustee are entitled to receive any
payment from the Corporation of principal, premium (if any) or interest on the
Securities. Notwithstanding the foregoing, any acceleration of the maturity of
the Securities due to the default by the Corporation to make a payment required
by Section 5.01(1) or (2) resulting from the operation of Section 9.03 shall be
automatically rescinded to the extent permitted by applicable law and all Events
of Default which permitted the acceleration of the Securities or under
applicable law shall be deemed to be automatically and permanently cured to the
extent permitted by applicable law if (i) all defaults on Senior Debt are
permanently cured or waive and (ii) the payment or payments the omission of
which gave rise to the Event of Default is or are made, within 179 days after
the date on which the Trustee or the Paying Agent received notice of the default
or default on the Senior Debt; and provided, further, that at the time of such
automatic rescission no other Event of Default or Defaults shall have occurred
and be continuing. Such automatic rescission shall be effective as of the date
both conditions specified in clauses (i) and (ii) above are satisfied.
Section 9.05 When Distribution Must Be Paid Over. In the event that the
Corporation shall make any payment to the Trustee on account of the principal,
premium (if any) or interest on the Securities at a time when such payment is
prohibited by Section 9.02 or 9.03, such payment shall be held by the Trustee,
in trust for the benefit of, and shall be paid forthwith over and delivered,
upon written request, to, the holders of Senior Debt (pro rata as to each of
such holders on the basis of the respective amounts of Senior Debt held by them)
or their representative, as their respective interests may appear, for
application to the payment of all Senior Debt in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
If a distribution is made to Holders that because of this Article IX
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Debt (pro rata as to each of such
holders on the basis of the respective amounts of Senior Debt held by them) or
their representative, as their respective interests may appear, for application
to the payment of all Senior Debt remaining unpaid to the extent necessary to
pay all Senior Debt in
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full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
Section 9.06 Notice by the Corporation. The Corporation shall promptly
notify the Trustee and the Paying Agent of any facts known to the Corporation
that would cause a payment of principal of or premium (if any) or interest on
the Securities to violate this Article IX, but failure to give such notice shall
not affect the subordination of the Securities to the Senior Debt provided in
this Article IX. Nothing in this Article IX shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.07.
Section 9.07 Subrogation. After all Senior Debt is paid in full in cash
or, at the option of the holders of Senior Debt, cash equivalents and until the
Securities are paid in full, Holders shall be subrogated to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to Holders have been applied to the
payment of Senior Debt.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article IX shall have been
applied pursuant to the provisions of this Article IX to the payment of all
amounts payable in respect of the Senior Debt of the Corporation, then and in
such case, the Holders shall be entitled to receive from the holders of such
Senior Debt at the time outstanding any payments or distributions received by
such holders of Senior Debt in excess of the amount sufficient to pay all
amounts payable in respect of the Senior Debt of the Corporation in full in cash
or, at the option of the holders of Senior Debt, cash equivalents.
Section 9.08 Relative Rights. This Article IX defines the relative
rights of Holders and holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Corporation and Holders, the obligation of
the Corporation, which is absolute and unconditional, to pay principal of and
premium (if any) and interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Corporation other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of holders of
Senior Debt under this Article IX.
If the Corporation fails because of this Article IX to pay principal of
or premium (if any) or interest on a Security on the due date, the failure is
still a Default or Event of Default.
The provisions of this Article IX shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any Senior Debt is
rescinded or must otherwise be returned by any holder of Senior Debt upon the
insolvency, bankruptcy or reorganization of the Corporation or otherwise, all as
though such payment had not been made.
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Section 9.09 No Waiver of Subordination Provisions. No right of any
holder of Senior Debt to enforce the subordination of the Indebtedness evidenced
by the Securities shall be impaired by any act or failure to act by the
Corporation or by its failure to comply with this Indenture.
The holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Securities
and without incurring responsibility to the Holders of the Securities and
without impairing or releasing the subordination provided in this Article IX or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Debt or any instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (2) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (3) release any
person liable in any manner for the collection or payment of Senior Debt; and
(4) exercise or refrain from exercising any rights against the Corporation or
any other Person.
Section 9.10 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 Corporation referred
to in this Article IX, the Trustee and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such representative or of the liquidating trustee or agent or
other person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Corporation, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
IX. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person, as a holder of
Senior Debt, to participate in any payment or distribution pursuant to this
Section 9.10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior Debt held
by such Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts pertinent
to the rights of such Person under this Section 9.10, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 9.11 Rights of Trustee and Paying Agent. The Trustee or Paying
Agent shall not at any time be charged with the knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
unless and until an Officer in the Corporate Trust Office and each Paying Agent
shall have received written notice thereof from a holder (or the agent) of
Senior Debt who shall have been certified by the Corporation or otherwise
established to the satisfaction of the Trustee to be such holder or agent; and,
prior to the receipt of any such written
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notice, the Trustee and each Paying Agent shall be entitled to assume
conclusively that no such facts exist. Unless at least three Business Days prior
to the date on which by the terms of this Indenture any monies are to be
deposited by the Corporation with the Trustee or any Paying Agent (whether or
not in trust) for any purpose (including, without limitation, the payment of the
principal of or premium, if any, or interest on any Security) the Trustee and
each Paying Agent shall have received with respect to such monies the notice
provided for in the foregoing sentence, the Trustee and each Paying Agent shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date. The
foregoing shall not apply to the Paying Agent if the Corporation is Paying
Agent.
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.
Section 9.12 Authorization to Effect Subordination; No Fiduciary Duty
to Holders of Senior Debt. Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article IX, and appoints the Trustee as attorney-in-fact for any and all
purposes. Notwithstanding anything to the contrary in this Article IX, the
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall have no duties to such holders, except as expressly set forth in
this Article IX and no implied covenants or obligation shall be read into this
Indenture against the Trustee. The Trustee shall not be liable to holders of
Senior Debt if it shall mistakenly pay over or distribute to or on behalf of
Holders of Securities or the Corporation monies or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article IX.
Section 9.13 Miscellaneous.
(a) All rights and interests under this Article IX of the holders of
Senior Debt, and all agreements and obligations of the Holders, the Trustee and
the Corporation under this Article IX, shall remain in full force and effect
irrespective of:
(i) any lack of validity or enforceability of the Credit Agreement, the
notes or security instruments issued pursuant thereto or any other agreement or
instrument relating thereto;
(ii) any exchange, release or non-perfection of any lien securing
Senior Debt, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Senior Debt; or
(iii) any other circumstance that might otherwise constitute a defense
available to, or a discharge of the Corporation in respect of Senior Debt.
(b) The provisions of this Article IX constitutes a continuing
agreement and shall (i) remain in full force and effect until the Senior Debt
shall have been paid in full, (ii) be binding
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<PAGE>
upon the Holders and the Trustee, the Corporation and their successors and
assigns, and (iii) inure to the benefit of and be enforceable by each other
holder of Senior Debt and its successors, transferees and assigns. No
amendment of this Article IX that adversely affects the rights of holders of
Senior Debt shall be effective as against any holder of Senior Debt who
shall not have consented in writing to such amendment. For purposes of this
Article IX, the Marine Debt shall be deemed to be outstanding and unpaid
unless and until an Officer in the Corporate Trust Office shall have received
notice from the holder of the Marine Debt that the Marine Debt has been paid
in full.
(c) The Trustee irrevocably authorizes and empowers Marine Midland
to file claims and proofs of claim with respect to the Indebtedness
represented by the Securities should the Trustee fail to do so prior to the
fifteenth day on which same is required to be filed in a Proceeding or a
Voluntary Proceeding, and take such other actions as Marine Midland may deem
necessary for the provisions of this Indenture.
ARTICLE X
REDEMPTION
Section 10.01 Applicability of Article. Securities which are redeemable
before their maturity shall be redeemable in accordance with their terms and in
accordance with this Article.
Section 10.02. Election to Redeem; Notice to Trustee . The election of
the Corporation to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Corporation of less
than all of the Securities pursuant to Section 10.03, the Corporation shall, at
least 60 days before the Redemption Date fixed by the Corporation (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed.
Section 10.03 Selection by Trustee of Securities to Be Redeemed. A
mandatory redemption provided for in the Form of Security for less than all of
the Securities shall be done on a pro rata basis. Except in the case of a
redemption in whole of the Securities, if less than all the Securities are to be
redeemed at the election of the Corporation, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the outstanding Securities not previously called for
redemption, by lot or pro rata, as determined by the Board of Directors and set
forth in an Officers' Certificate. The portions of the principal amount of
Securities so selected for partial redemption shall be equal to the minimum
authorized denominations for the Securities or any integral multiple thereof,
except as otherwise set forth in the applicable form of Securities. In any case
when more than one Security is registered in the same name, the Trustee in its
discretion may treat the aggregate principal amount so registered as if it were
represented by one Security of such series.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption and, in the case of any Securities 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 Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 10.04 Notice of Redemption. Notice of redemption shall be given
by the Corporation, or at the Corporation's request, by the Trustee in the name
and at the expense of the Corporation, not less than 30 days and not more than
60 days prior to the Redemption Date to the Holders of Securities to be redeemed
in whole or in part pursuant to this Article 10, in the manner provided in
Section 11.02. Any notice so given shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. Failure to give such
notice, or
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<PAGE>
any defect in such notice to the Holder of any Security designated for
redemption, in whole or in part, shall not affect the sufficiency of any notice
of redemption with respect to the Holder of any other Security.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Securities of such series are being redeemed by the Company
pursuant to provisions contained in this Indenture or the terms of the
Securities together with a brief statement of the facts permitting such
redemption,
(4) if less than all outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
and the amount of any premium payable thereon of the particular Securities to be
redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest thereon,
if any, shall cease to accrue on and after said date, and
(6) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Section 10.05 Deposit of Redemption Price. On or prior to the Business
Day immediately preceding the Redemption Date for any Securities, the
Corporation shall deposit with the Trustee or with a Paying Agent (or, if the
Corporation is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 3.09) an amount of money sufficient to pay the Redemption
Price of such Securities or any portions thereof which are to be redeemed on
that date.
Section 10.06 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, any Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price,
and from and after such date (unless the Corporation shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Corporation at the Redemption Price.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 10.07 Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the Corporate Trust Office or such
other office or agency of the Corporation as is specified in the notice of
redemption with, if the Corporation, the Registrar or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
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<PAGE>
the Corporation, the Registrar and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing, and the Corporation shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of like tenor and
form, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered. In the case of a Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Security or Securities as aforesaid, may
make a notation on such Security of the payment of the redeemed portion thereof.
ARTICLE XI
MISCELLANEOUS
Section 11.01 The Indenture Act Controls. Any provisions of this
Indenture which would be required to be contained herein if the Indenture were
qualified under the TIA shall be construed and interpreted in accordance with
interpretations of the TIA by courts and the commission.
Section 11.02 Notices. Any notice or communication to the corporation
or the Trustee is duly given if in writing and delivered in person or mailed by
first-class mail to the following address:
The Corporation's address is:
RB Asset, Inc.
645 Fifth Avenue, 8th Floor
New York, New York 10022
Attention: Chief Executive Officer
The Trustee's address is:
La Salle National Bank
135 South La Salle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
RB Asset Junior Subordinated Notes due 2006
Telephone: (312) 904-7326
Telecopy: (312) 904-2084
With respect to notices between the Trustee and the Corporation only,
notices may also be given by facsimile transmission with receipt confirmed by
telephone and followed by an original sent by guarantee overnight courier.
The Corporation or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be in writing and
mailed by first-class mail to his address shown on the register kept by the
Registrar. Failure to mail a notice or a
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<PAGE>
communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders.
If a notice or communication is delivered or mailed, as the case may
be, in the manner provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Corporation mails a notice or communication to Securityholders,
it shall mail a copy to the Trustee and each Agent at the same time.
Section 11.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Trustee shall comply with the provisions of TIA Section 312(b).
The Corporation, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 11.04 Certificate and Opinion as the Conditions Present. Upon
any request or application by the corporation to the Trustee to take any action
under this Indenture, the Corporation shall furnish to the Trustee:
(a) an Officer's Certificate stating that, in the opinion of
the singers, all conditions precedent, if any, provided for it in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 11.06 Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or any meeting of Securityholders. The Registrar
or Paying Agents may make reasonable rules and set reasonable requirements for
their functions.
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<PAGE>
Section 11.07 Legal Holidays. A "Legal Holiday" with respect to any
place is a Saturday, a Sunday or a day on which banking institutions are not
required to be open in such place. If a payment date is a Legal Holiday at a
place of payment, payment may be made at the place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 11.08 No Recourse Against Others. The Securities and the
obligations of the Corporation under this Indenture are solely obligations of
the Corporation and no officer, director, employee or stockholder shall as such
be liable for any failure by the Corporation to pay amounts on the Securities
when due or perform any such obligation.
Section 11.09 Duplicate Originals. The parties may sign any number of
copies of this Indenture. One signed copy is enough to prove this Indenture.
Section 11.10 Governing laws. The internal laws of the State of New
York shall govern this Indenture and the Securities.
Section 11.11 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Corporation or a Subsidiary. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
Section 11.12 Successors. All agreements of the Corporation in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 11.13 Severability. In case any provision in this Indenture or
in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 11.14 Table of Contents, Headings, etc. The Table of contents
and headings of the Articles and Sections of this Indenture have been inserted
for the convenience of reference only, are not to be considered a part thereof,
and shall in no way modify or restrict any of the terms or provisions hereof
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
RB ASSET, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
- ------------------------------------
LASALLE NATIONAL BANK
as Trustee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
- ------------------------------------
39
<PAGE>
Exhibit A
[Form of Face of Security]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE NOTES EVIDENCED BY THIS CERTIFICATE MAY BE ISSUED AND TRANSFERRED ONLY IN
DENOMINATIONS OF $100 AND INTEGRAL MULTIPLES THEREOF (OR SUCH GREATER AMOUNT AS
MAY BE REQUIRED BY APPLICABLE STATE OR FEDERAL LAW).
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID"), AS SUCH TERM IS
DEFINED IN THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED. ASSUMING
THAT (i) NEITHER THE SUBORDINATES NOTES NOR THE SERIES A PREFERRED STOCK
EXCHANGED THEREFOR ARE OR WILL BE TRADED ON AN ESTABLISHED SECURITIES MARKET,
AND (ii) THE COMPANY WILL BE TREATED AS EXERCISING ITS OPTION TO REDEEM THE
SUBORDINATED NOTES IN FULL IMMEDIATELY PRIOR TO THE INTEREST INCREASE DATE OF
JANUARY 16, 2002 AND NOT EXERCISING ITS OPTION TO PAY INTEREST ON ANY
SUBORDINATED NOTES IN CASH, THIS NOTE WAS ISSUED ON ____________ WITH AN ISSUE
PRICE EQUAL TO 100% OF ITS ORIGINAL PRINCIPAL AMOUNT, A SEMI-ANNUAL YIELD TO
MATURITY EXPRESSED ON AN ANNUAL BASIS OF ______ % AND OID FOR FEDERAL INCOME TAX
PURPOSES IN AN AMOUNT EQUAL TO _____% OF ITS ORIGINAL PRINCIPAL AMOUNT.
No. _______ $ _______
CUSIP No. 749254 AA6
RB ASSET, INC.
Increasing Rate Junior Subordinated Notes due 2006
RB Asset, Inc., a Delaware corporation, promises to pay CEDE & CO. or
registered assigns, the principal sum of _______ Dollars, plus a premium of 4.0%
of the principal amount, on January 15, 2006, unless earlier redeemed or
accelerated after an Event of Default on the terms and in the manner described
in the Indenture, as hereinafter defined, and to pay interest thereon
semi-annually in arrears at the rate of 8% per annum (the "Initial Interest
Rate") to and including January 15, 2002, and thereafter at a rate equal to the
Initial Interest Rate plus the applicable Interest Rate Increment as hereinafter
defined, on each Interest Payment Date, as hereinafter defined, until the
principal hereof is paid or duly provided for. Payment of principal and interest
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<PAGE>
shall be made in the method and subject to the terms set forth in provisions
appearing on the reverse hereof, which provisions, in their entirety, shall for
all purposes have the same effect as if set forth at this place.
41
<PAGE>
IN WITNESS WHEREOF, RB Asset, Inc. has caused this instrument to be
executed in its corporate name by the manual or facsimile signature of its
President or a Vice President and attested by its Secretary or an Assistant
Secretary.
Dated: [ ]
RB ASSET, INC.
(SEAL)
By:
-------------------------------
Attest:
By:
--------------------------------
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<PAGE>
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Increasing Rate Junior Subordinated Notes due 2006
referred to in the within-mentioned Indenture.
Dated:
LASALLE NATIONAL BANK
as Trustee
By:
--------------------------------
Authorized Signatory
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<PAGE>
[Form of Reverse of Security]
RB ASSET, INC.
1. The Securities. This Security is one of duly authorized issue of
subordinated notes issued by RB Asset, Inc., a Delaware corporation (the
"Corporation"), designated as its Increasing Rate Junior Subordinated Notes due
January 15, 2006 and referred to hereinafter as the "Securities."
2. Interest. The Corporation promises to pay interest on the principal
amount of this Security in cash at the rate per annum calculated as set forth on
the face of this certification; provided, however, that through and including
January 15, 2002, on each Interest Payment Date (as defined below), the
Corporation may, at its option and in its sole discretion, in lieu of the
payment in whole or in part of interest due on this Security in cash, pay
interest on this Security through the issuance of additional Securities (the
"Additional Securities") in an aggregate principal amount equal to the amount of
interest that would be payable with respect to this Security, if such interest
were paid in cash. After January 15, 2002, the Corporation shall pay interest on
this Security in cash. The Corporation shall notify the Trustee in writing of
its election to pay interest on this Security through the issuance of additional
Securities and the aggregate amount of Additional Notes to be issued not less
than 10 nor more than 45 days prior to the record date for the Interest Payment
Date on which additional Securities will be issued. On each such Interest
Payment Date, the Trustee shall authenticate Additional Notes for original
issuance to each Holder on the relevant record date in the aggregate principal
amount required to pay such interest. Additional Securities are an additional
obligation of the Corporation and shall be governed by, and entitled to the
benefits of, this Indenture and shall be subject to the terms of this Indenture
and shall be pari passu with and subject to the same terms (including the rate
of interest from time to time payable thereon) as this Security (except, as the
case may be, with respect to the issuance date and aggregate principal amount).
The Corporation shall pay interest on global Securities through the issuance of
Additional Securities only in accordance with the rules and regulations of the
Depository as in effect from time to time. The Corporation will pay interest
semi-annually in arrears on January 15 and July 15 of each year (each an
"Interest Payment Date"), commencing on July 15, 1999, the first Interest
Payment Date. Interest on the Securities will accrue from the most recent
Interest Payment Date to which interest has been paid or, if no interest has
been paid, from the date hereof. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The "Interest Rate Increment" shall be
0.50% per annum for the semi-annual period commencing on January 16, 2002 and
ending on the next Interest Payment Date and shall increase by 0.50% per annum
for each semi-annual period beginning on the day following each successive
Interest Payment Date and ending on the Interest Payment Date immediately
thereafter until the semi-annual period ending on the Maturity Date.
3. Method of Payment; Form. The Corporation will pay interest on the
Securities (except defaulted interest) to the persons who are registered Holders
of Securities at the close of business on the last day (whether or not such day
is a Business Day) of the month preceding the month in which an Interest Payment
Date (a "Regular Record Date") occurs even though Securities are canceled after
the Regular Record Date and on or before the Interest Payment Date.
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<PAGE>
Any such interest not so punctually paid or duly provided for within the grace
period set forth in Section 5.01(1) and any interest lawfully payable on such
defaulted interest, will forthwith cease to be payable to the Holder on such
Regular Record Date and shall be payable to the person in whose name this
Security is registered at the close of business on a special Record Date for the
payment of such defaulted interest to be fixed by the Corporation, notice of
which shall be given to Holders not less than 10 days prior to such Special
Record Date. In addition to the outstanding principal amount hereof, the
Corporation will pay at maturity a premium equal to 4% of such outstanding
principal amount. Holders must surrender Securities to a Paying Agent to collect
payments of principal and any premium. The Corporation will pay principal in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Corporation or the Paying Agent may, at
its election, pay principal and interest by check payable in such money mailed
to a Holder's registered address.
Except as otherwise provided in the Indenture, the Securities will be
issued in global form only registered in the name of CEDE & Co. The Securities
will not be issued in definitive form except as otherwise provided in the
Indenture, and ownership of the Securities shall be maintained in book entry
form by DTC for the account of participating organizations of DTC.
4. Paying Agents and Registrar. The Trustee (as defined herein) will
act as a Paying Agent and Registrar. The Corporation may change any Paying Agent
or Registrar without notice to any Securityholder. The Corporation may act in
any such capacity.
5. Indenture. The Corporation issued the Securities under an Indenture
dated as of December __, 1998 (the "Indenture"), between the Corporation and
LaSalle National Bank, as trustee (the "Trustee"). The Securities were issued
pursuant to the exchange of the 15% Noncumulative Perpetual Preferred Stock,
Series A, par value $1.00, of the Corporation (the "Series A Preferred Stock")
pursuant to the terms of the Offering Circular dated November 25, 1998 of the
Corporation relating thereto. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended, and as in effect from time to time (the
"Trust Indenture Act"). The Securities are subject to all such terms and
Securityholders are referred to the Indenture and such Act for a statement of
such terms. The Securities are unsecured general obligations of the Corporation
(up to $36,316,000 principal amount, plus such additional principal amount of
Securities as may be issued in payment of interest on Securities from the date
of their initial issuance until the semi-annual interest period beginning on
January 16, 2002). The indebtedness evidenced by this Security is not secured by
the assets of the Corporation or any of its affiliates. This Security is not
eligible as collateral for any loan by the Corporation.
6. Subordination. The Securities are subordinated to Senior Debt. To
the extent provided in the Indenture, Senior Debt must be paid before the
Securities may be paid. The Corporation agrees, and each Holder by accepting a
Security agrees, to such subordination and authorizes the Trustee to give it
effect.
7. Denominations, Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $100 (or such greater amount as may be
required by applicable State or Federal law) and integral multiples of $100 in
excess thereof Securities issued in lieu of
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<PAGE>
payment of interest in cash shall also be issued in denominations of $100 and
integral multiples thereof, with any interest amount under $100 payable in cash.
The transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes or other governmental charges and fees required by law or permitted by
the Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it need not
exchange or register the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed.
8. Mandatory Redemption. The Corporation will redeem on July 15, 2002
and each January 15 and July 15 thereafter to and including July 15, 2005,
7.14285% of the aggregate principal amount of the Securities originally issued
under the Indenture at the following Redemption Prices (expressed as percentages
of the principal amount), together with accrued interest to the date fixed for
redemption:
<TABLE>
<CAPTION>
Redemption Date Percentage
--------------- ----------
<S> <C>
July 15, 2002 100.00%
January 15, 2003 100.00%
July 15, 2003 100.50%
January 15, 2004 100.75%
July 15, 2004 101.00%
January 15, 2005 102.00%
July 15, 2005 103.00%
</TABLE>
The Corporation may reduce the principal amount of the Securities
required to be redeemed pursuant to this paragraph 8 by subtracting 100% of the
principal amount of any Securities acquired by the Corporation and delivered to
the Trustee for cancellation or redeemed otherwise than pursuant to this
paragraph 8. The Corporation may so subtract the same Security only once.
9. Optional Redemption. The Securities may be redeemed at the option of
the Corporation in whole or in part at any time at the following Redemption
Prices (expressed as percentages of the principal amount), together with accrued
interest to the date fixed for redemption:
<TABLE>
<CAPTION>
If Redeemed During the Following Periods Percentage
---------------------------------------- ----------
<S> <C>
On or prior to January 15, 2003 100.00%
January 16, 2003 to July 15, 2003 100.50%
July 16, 2003 to January 15, 2004 100.75%
January 16, 2004 to July 15, 2004 101.00%
July 16, 2004 to January 15, 2005 102.00%
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
If Redeemed During the Following Periods Percentage
---------------------------------------- ----------
<S> <C>
January 16, 2005 to July 15, 2005 103.00%
July 16, 2005 and thereafter 104.00%
</TABLE>
10. Persons Deemed Owners. The registered Holder of a Security may be
treated as its owner for all purposes.
11. Amendments and Waivers. Subject to certain exceptions, the
Indenture or the Securities may be amended with the consent of the Holders of a
majority in principal amount of the then-outstanding Securities and any past
default or compliance with any provision may be waived in a particular instance
with the consent of the Holders of a majority in principal amount of the then
outstanding Securities. Without the consent of or notice to any Securityholder,
the Corporation and the Trustee may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for assumption of the Corporation's obligations to Securityholders, make
any change that does not adversely affect the rights of any Securityholder or to
take any action necessary to qualify the Indenture under the Trust Indenture
Act.
12. Defaults and Remedies. An Event of Default is: default for 30 days
in payment of interest on the Securities; default in payment of principal or
premium on the Securities (including any mandatory redemption payments) when it
becomes due and payable at maturity or upon redemption, acceleration or
otherwise; failure by the Corporation for 30 days after notice to it by the
Trustee or by the Holders of at least 25% in principal amount of the Securities
then outstanding to comply with any of its other agreements or covenants in the
Indenture or the Securities; default under any instrument or obligations
representing Indebtedness of the Corporation or any Subsidiary (other than
certain nonrecourse Indebtedness) if (i) the effect of such default is to permit
the acceleration of such Indebtedness, and (ii) the aggregate principal amount
of such indebtedness as to which any such default or defaults shall have
occurred exceeds $10 million; appointment of a Custodian of the Corporation;
certain events of bankruptcy or insolvency; or the rendering of one or more
judgments against the Corporation or any Subsidiary in an aggregate amount
exceeding $10 million, which judgments remain undischarged for a period of 60
days after the right to appeal them has expired. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then-outstanding Securities may declare all the Securities to be
due and payable immediately. Securityholders may not enforce the Indenture or
the Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations described in the Indenture, Holders of a majority
in principal amount of the then-outstanding Securities may direct the Trustee in
its exercise of any trust or power.
13. Trustee Dealings with Corporation. The Trustee in its individual or
any other capacity, may make loans to and perform services for the corporation
or its Affiliates, and may otherwise deal with the Corporation or its
Affiliates, as if it were not Trustee.
47
<PAGE>
14. No Recourse Against Others. The Securities and the obligations of
the Corporation under the Indenture are solely obligations of the Corporation
and no officer, director, employee or stockholder of the Corporation shall as
such be liable for any failure of the Corporation to pay amounts on the
Securities when due or perform any such obligation.
15. Unclaimed Money. If money for the payment of principal of or
interest on any Security remains unclaimed for two years, the Trustee or its
Agents will pay the money back to the Corporation at the Corporation's request.
After that, Holders entitled to this money must look to the Corporation for
payment, unless a law governing abandoned property designates another person.
16. Discharge Upon Redemption or Maturity. Subject to the terms of the
Indenture, the Indenture will be discharged and canceled upon the payment of all
the Securities.
17. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
18. Certain Limitations on Securities. The Security is not secured by
the assets of the Corporation, or any of its Affiliates or Subsidiaries, and is
not eligible as collateral for any loan by the Corporation.
19. Definitions. Terms defined in the Indenture and not otherwise
defined in this Security are used in this Security with the meaning so defined.
20. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM(= tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (=CUSTODIAN), and UNIF GIFT MIN ACT
(=Uniform Gifts to Minors Act).
The Corporation will furnish to any Securityholder upon written
requests and without charge a copy of the Indenture, which has in it the text of
this Security in larger type. Requests may be made to: RB Asset, Inc., 645 Fifth
Avenue, 8th Floor, New York, New York 10022, Attention: Chief Executive Officer.
48
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: for valuable
consideration, the undersigned registered Holder or Holder or Holders of this
Security assign and transfer this Security to.
-------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably constitute and appoint _______________ agent transfer this
Security on the books of the Corporation. The agent may substitute another act
for him.
-------------------------------------------------------------------------
Date: Your Signature
---------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature Guaranteed
By
---------------------------------------
49
