EXHIBIT 6
IBF VI - SECURED LENDING CORPORATION, as Issuer
And
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee
INDENTURE
Dated as of _________________, 2000
$50,000,000
Current Interest Subordinated Bonds - Due 2006
Accretion Subordinated Bonds - Due 2006
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
Article I DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
Section 1.01. Definitions............................................................................1
Section 1.02. Incorporation by Reference of TIA.....................................................11
Section 1.03. Rules of Construction ................................................................11
Article II THE SECURITIES.......................................................................................12
Section 2.01. Accounts..............................................................................12
Section 2.02. Transaction Statement.................................................................12
Section 2.03. Registrar and Paying Agent ...........................................................12
Section 2.04. Paying Agent ToHold Assets in Trust ..................................................13
Section 2.05. Securityholder Lists .................................................................13
Section 2.06. Transfer and Exchange ................................................................13
Section 2.07. Reserved..............................................................................14
Section 2.08. Outstanding Securities ...............................................................14
Section 2.09. Treasury Securities...................................................................14
Section 2.10. Reserved..............................................................................15
Section 2.11. Reserved..............................................................................15
Section 2.12. Defaulted Interest....................................................................15
Section 2.13. Deposit of Monies.....................................................................15
Section 2.14. Reserved..............................................................................15
Section 2.15. Book Entry Registration...............................................................15
Section 2.16. Initial and Monthly Statements........................................................16
Section 2.17. Reserved..............................................................................16
Section 2.18. Interest and Payment Terms ...........................................................16
Article III REDEMPTION AND CONVERSION...........................................................................18
Section 3.01. Right to Redeem; Notices to Trustee...................................................18
Section 3.02. Notice of Redemption .................................................................18
Section 3.03. Effect of Notice of Redemption .......................................................19
Section 3.04. Deposit of Redemption Price ..........................................................19
Section 3.05. Purchase of Securities at the Option of the Holder....................................20
Section 3.06. Conversion Events.....................................................................21
Article IV COVENANTS............................................................................................22
Section 4.01. Payment of Securities ................................................................22
Section 4.02. Maintenance of Office or Agency ......................................................22
Section 4.03. Corporate Existence ..................................................................22
Section 4.04. Payment of Taxes and Other Claims ....................................................23
Section 4.05. Maintenance of Properties and Insurance ..............................................23
Section 4.06. Compliance Certificates; Notice of Default ...........................................24
Section 4.07. Compliance with Laws..................................................................24
Section 4.08. SEC Reports and Other Information ....................................................25
Section 4.09. Waiver of Stay Extension or Usury Laws ...............................................25
Section 4.10. Limitation on Indebtedness............................................................25
Section 4.11. Limitation on Restricted Payments ....................................................27
Section 4.12. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries..........................................................................28
Section 4.13. Limitation on Liens ..................................................................28
Section 4.14. Limitation on Investments, Loans and Advances ........................................29
Section 4.15. Limitation on Transactions with Affiliates ...........................................29
Section 4.16. Limitation on Liquidations, Dissolutions, Mergers and Consolidation...................29
Section 4.17. ERISA Compliance .....................................................................30
Section 4.18. Limitation on Acquisitions ...........................................................30
Section 4.19. Limitation on Hedging Obligations ....................................................30
Section 4.20. Calculation of Original Issue Discount................................................31
Article V SUCCESSOR CORPORATION.................................................................................31
Section 5.01. Consolidation, Merger, Conveyance, Transfer or Lease .................................31
Section 5.02. Successor Entity Substituted .........................................................31
Article VI DEFAULT AND REMEDIES.................................................................................32
Section 6.01. Events of Default ....................................................................32
Section 6.02. Acceleration .........................................................................34
Section 6.03. Other Remedies........................................................................34
Section 6.04. Waiver of Past Defaults ..............................................................35
Section 6.05. Control by Required Holders ..........................................................35
Section 6.06. Limitation on Suits ..................................................................35
Section 6.07. Rights of Holders ToReceive Payment ..................................................36
Section 6.08. Collection Suit by Trustee ...........................................................36
Section 6.09. Trustee May File Proofs of Claim .....................................................36
Section 6.10. Priorities ...........................................................................36
Section 6.11. Undertaking for Costs ................................................................37
Section 6.12. Rights and Remedies Cumulative .......................................................37
Section 6.13. Delay or Omission Not Waiver..........................................................37
Article VII TRUSTEE............................................................................................ 37
Section 7.01. Duties of Trustee ....................................................................38
Section 7.02. Rights of Trustee ....................................................................39
Section 7.03. Individual Rights of Trustee .........................................................39
Section 7.04. Trustee's Disclaimer .................................................................40
Section 7.05. Notice of Default ....................................................................40
Section 7.06. Reports by Trustee to Holders ........................................................40
Section 7.07. Compensation and Indemnity ...........................................................40
Section 7.08. Replacement of Trustee ...............................................................41
Section 7.09. Successor Trustee by Merger, Etc......................................................42
Section 7.10. Eligibility: Disqualification.........................................................42
Section 7.11. Preferential Collection of Claims Against Company.....................................43
Article VIII DISCHARGE OF INDENTURE; DEFEASANCE.................................................................43
Section 8.01. Discharge of Indenture................................................................43
Section 8.02. Legal Defeasance and Covenant Defeasance..............................................43
Section 8.03. Application of Trust Money ...........................................................46
Section 8.04. Repayment to Company .................................................................46
Section 8.05. Reinstatement ........................................................................47
Section 8.06. Acknowledgment of Discharge by Trustee ...............................................47
Article IX AMENDMENTS, SUPPLEMENTS AND WAIVERS..................................................................47
Section 9.01. Without Consent of Holders ...........................................................47
Section 9.02. With Consent of Holders ..............................................................48
Section 9.03. Compliance with TIA ..................................................................49
Section 9.04. Revocation and Effect of Consents.....................................................49
Section 9.05. Reserved..............................................................................50
Section 9.06. Trustee ToSign Amendments, Etc........................................................50
Article X SUBORDINATION.........................................................................................50
Section 10.01. Securities Subordinated to Senior Indebtedness .......................................50
Section 10.02. Suspension of Payment on Securities in Certain Events ................................51
Section 10.03. Securities Subordinated to Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or Reorganization of Company ................................52
Section 10.04. Holders to be Subrogated to Rights of Holders of Senior Indebtedness .................53
Section 10.05. Obligations of the Company Unconditional .............................................53
Section 10.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice ..............54
Section 10.07. Application by Trustee of Assets Deposited with It ...................................54
Section 10.08. No Waiver of Subordination Provisions ................................................55
Section 10.09. Holders Authorize Trustee to Effectuate Subordination of Bonds .......................55
Section 10.10. Right of Trustee to Hold Senior Indebtedness .........................................56
Section 10.11. This Article X Not ToPrevent Events of Default .......................................56
Section 10.12. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness .......................56
Article XI MISCELLANEOUS........................................................................................57
Section 11.01. TIA Controls .........................................................................57
Section 11.02. Notices ..............................................................................57
Section 11.03. Communications by Holders with Other Holders .........................................58
Section 11.04. Certificate and Opinion as to Conditions Precedent ...................................58
Section 11.05. Statements Required in Certificate or Opinion ........................................58
Section 11.06. Rules by Trustee, Paying Agent, Registrar ............................................59
Section 11.07. Legal Holidays .......................................................................59
Section 11.08. Governing Law ........................................................................59
Section 11.09. No Adverse Interpretation of Other Agreements ........................................59
Section 11.10. No Recourse Against Others ...........................................................59
Section 11.11. Successors ...........................................................................60
Section 11.12. Counterparts .........................................................................60
Section 11.13. Severability .........................................................................60
Section 11.14. Table of Contents, Headings, Etc......................................................60
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CROSS-REFERENCE TABLE*
TIA Indenture
Section Section
------- ----------
<S> <C>
310(a)(1) ..................................................... 7.10
(a)(2) ..................................................... 7.10
(a)(3) ..................................................... N.A.
(a)(4) ..................................................... N.A.
(a)(5) ..................................................... N.A.
(b) ..................................................... 7.08, 7.10
(c) ..................................................... N.A.
311(a) ..................................................... 7.11
(b) ..................................................... 7.11
(c) ..................................................... N.A.
312(a) ..................................................... 2.05
(b) ..................................................... 11.03
(c) ..................................................... 11.03
313(a) ..................................................... 7.06
(b)(2) ..................................................... 7.06
(c) ..................................................... 7.06
(d) ..................................................... 7.06
314(a) ..................................................... 4.06; 4.08; 11.02
(b) ..................................................... N.A.
(c)(1) ..................................................... 11.04
(c)(2) ..................................................... 11.04
(c)(3) ..................................................... N.A.
(d) ..................................................... N.A.
(e) ..................................................... 11.05
(f) ..................................................... N.A.
315(a) ..................................................... 7.01
(b) ..................................................... 7.05; 11.02
(c) ..................................................... 7.01(a)
(d) ..................................................... 7.01(c)
(e) ..................................................... 6.11
316(a)(last sentence).................................................. 2.09
(a)(1)(A) ..................................................... 6.05
(a)(1)(B) ..................................................... 6.04
(a)(2) ..................................................... N.A.
(b) ..................................................... 6.07
(c) ..................................................... N.A.
317(a)(1) ..................................................... 6.08
(a)(2) ..................................................... 6.09
(b) ..................................................... 2.04
318(a) ..................................................... 11.01
N.A. means not applicable
--------------
*This cross-reference table shall not, for any purpose, be deemed to be part of the Indenture.
</TABLE>
<PAGE>
INDENTURE, dated as of ______________, 2000, between IBF VI - SECURED
LENDING CORPORATION, a Delaware corporation (the "Company"), and CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, a ________________ corporation, as Trustee
(the "Trustee").
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Company's Current
Interest Subordinated Bonds due December 31, 2006, and the Company's Accretion
Subordinated Bonds due December 31, 2006:
Article I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Account" means the record of beneficial ownership of an Accretion Bond
or a Current Bond maintained by the Company.
"Accreted Interest" means interest which accretes on the Accretion Bonds
at the rate set forth in the related prospectus supplement or, upon the
occurrence of an Event of Default, at the Default Rate that accrues from the
most recent Accretion Date and is subject to compounding pursuant to Section
2.18.
"Accretion Bonds" means the Company's Unsecured Accretion Subordinated
Bonds issued under this Indenture.
"Accretion Date" shall have the meaning set forth in Section 2.18.
"Acquisition" means the acquisition of (i) a controlling equity or other
ownership interest in another Person (including the purchase of an option,
warrant or convertible, exchangeable or similar type security to acquire such
a controlling interest at the time it becomes exercisable, convertible or
exchangeable by the holder thereof), whether by purchase of such equity or
other ownership interest or upon exercise of an option or warrant for, or
conversion or exchange of securities into, such equity or other ownership
interest, or (ii) assets of another Person which constitute all or any
material part of the assets of such Person or of a line or lines of business
conducted by such Person.
"Affiliate" means, with respect to any specified Person, any other Person
whom directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Affiliate Transaction" means the conduct of business or any transactions
or series of transactions by the Company or any of its Subsidiaries with or
for the benefit of any of their respective Affiliates.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the board of
directors or other applicable governing body of such Person or any committee
of the board of directors or of such other governing body of such Person duly
authorized, with respect to any particular matter, to exercise the power of
the board of directors or other applicable governing body of such Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such
Person, to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day that is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of such Person's capital stock or any form
of membership interest, as applicable, whether outstanding on the Issue Date
or issued after the Issue Date, and any and all rights, warrants or options
exercisable or exchangeable for or convertible into such capital stock.
"Cash Equivalents" means at any time (i) any evidence of Indebtedness
with a maturity of 180 days or less issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof); (ii) certificates of deposit or
acceptances with a maturity of 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500,000,000; (iii) commercial
paper with a maturity of 180 days or less issued by a corporation (except an
Affiliate of the Company) organized under the laws of any state of the United
States or the District of Columbia and rated at least A-1 by Standard & Poor's
Corporation or at least P-1 by Moody's Investors Service, Inc.; (iv)
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the United States
Government or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one year from the
date of acquisition; provided, however, that the terms of such agreements
comply with the guidelines set forth in the Federal Financial Agreements of
Depository Institutions with Securities Dealers and Others, as adopted by the
Comptroller of the Currency; and (v) money market funds investing principally
in the types of securities described in clauses (i) and (ii) above.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the terms and conditions of this Indenture
and thereafter means such successor.
"Company Order" means a written order or request signed in the name of
the Company by its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Consistent Basis" in reference to the application of GAAP means the
accounting principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited financial
statements of the Company in prior periods.
"Consolidated Net Income (Loss)" means, for any period of computation
thereof, the gross revenues from operations of the Company and its
Subsidiaries (including payments received by the Company and its Subsidiaries
of (i) interest income, and (ii) dividends and distributions made in the
ordinary course of their businesses by Persons in which investment is
permitted pursuant to this Indenture and not related to an extraordinary
event), less all operating and non-operating expenses of the Company and its
Subsidiaries including taxes on income, all determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis; but excluding as
income: (a) net gains on the sale, conversion or other disposition of capital
assets, (b) net gains on the acquisition, retirement, sale or other
disposition of Capital Stock and other securities of the Company or its
Subsidiaries, (c) net gains on the collection of proceeds of life insurance
policies, (d) any write-up of any asset, and (e) any other net gain or credit
of an extraordinary nature as determined in accordance with GAAP applied on a
Consistent Basis.
"Current Bonds" means the Company's Unsecured Current Interest
Subordinated Bonds issued under this Indenture.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or the passage of time
or both would be an Event of Default.
"Default Amount" shall have the meaning set forth in Section 6.02.
"Default Rate" means the rate payable by the Company upon the occurrence
of an Event of Default, which shall be equal to fifteen percent (15%) per
annum.
"Disqualified Stock" means with respect to any Person, any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable, in each case, at the option of
the holder thereof), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is exchangeable for Indebtedness, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the Maturity Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Financing Documents" means this Indenture and any other document
executed by or on behalf of the Company in connection with the consummation of
the sale by the Company of the Securities.
"Fiscal Quarter" means a three month quarter of a Fiscal Year and when
followed by reference to a year, means the first, second, third or fourth
quarter of such Fiscal Year, as indicated.
"Fiscal Year" means the twelve-month fiscal period of the Company and its
Subsidiaries commencing on January 1 of each calendar year and ending on
December 31 of such calendar year.
"Fixed Interest" means interest payable on the Securities as set forth in
the related prospectus supplement or, upon the occurrence of an Event of
Default, at the Default Rate, that accrues from the most recent Interest
Payment Date and subject to compounding pursuant to Section 2.18.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date hereof and as such principles
may be amended from time to time, including, without limitation, those 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 may be approved by a significant segment of
the accounting profession of the United States, which are applicable as of the
date of determination.
"Hedging Obligations" means any and all obligations of the Company or any
of its Subsidiaries, whether absolute or contingent and howsoever and whenever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates
(including without limitation commodity exchange rates) or forward rates
applicable to such party's assets, liabilities or exchange transactions,
including, but not limited to, U.S. dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange agreements,
commodity exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (ii) any and all
cancellations, buybacks, reversals, terminations or assignments of any of the
foregoing.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" means, with respect to any person, without duplication,
(i) any liability, contingent or otherwise, of such Person (a) for borrowed
money (whether or not the recourse of the lender is to the whole of the
Property of such Person or only to a portion thereof), (b) evidenced by bonds,
notes, debentures or similar instruments or representing the balance deferred
and unpaid of any part of the purchase price of Property or other assets
(including Investments) or for the cost of Property or other assets
constructed or of improvements thereto (including any obligation under or in
connection with any letter of credit related thereto), (c) under or in
connection with any letter of credit issued for the account of such Person,
and all drafts drawn, reimbursement obligations or demands for payment
thereunder, or (d) for the payment of money relating to any capitalized lease
obligations; (ii) any liability of others of the kind described in the
preceding clause (i) which the Person has guaranteed or which is otherwise its
legal liability; (iii) any liability, contingent or otherwise, secured by any
Lien in respect of Property of such Person, whether or not the obligations
secured thereby shall have been assumed by or shall otherwise be such Person's
legal liability, provided, that, solely in the case of any Indebtedness of the
type described in this clause (iii), recourse for the payment of which is
limited to such Property, the amount of such Indebtedness shall be deemed to
be the lesser of the fair market value of such Property or the amount of the
obligation so secured; and (iv) any and all deferrals, renewals, extensions
and refundings of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (i), (ii) and
(iii). The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"interest" when used with respect to any Security means any one or more
of Fixed Interest or Accreted Interest, as the context dictates.
"Interest Payment Date" has the meaning provided in Section 2.18.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit to (including any guarantee of a
loan or other extension of credit) or investment in, capital contribution to
(by means of any transfer of cash or other Property to others or any payment
for Property for the account or use of others or otherwise including, without
limitation, amounts paid in advance on account of the purchase price of
merchandise or equipment to be delivered within one year of the date of
advance), or purchase of Capital Stock, bonds, notes, debentures or other
securities issued by, any other Person.
"Issue Date" means the date of first issuance of the Securities under
this Indenture.
"Issue Price" of any Accretion Bond means, in the original issuance of
such Accretion Bond, the initial Issue Price at which the Accretion Bond is
sold.
"Legal Holiday" means, with respect to a particular place of payment, a
Saturday, a Sunday or a day on which banking institutions in New York, New
York or at such place of payment are authorized or obligated by law, executive
order or governmental decree to be closed.
"Lien" means any mortgage, lien, pledge, charge, security interest,
encumbrance, claim, hypothecation, assignment for security, deposit
arrangement or preference or other security agreement of any kind or nature
whatsoever, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement and any lease deemed to constitute a security interest). For
purposes hereof, a Person shall be deemed to own subject to a Lien any
Property which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement.
"Material Subsidiary" means, with respect to any person, any Subsidiary
of such person, which would be a "significant subsidiary" pursuant to Article
1-02 of Regulation S-X.
"Maturity Date" means December 31, 2006.
"Multiemployer Plan" means a plan described in Section 3(37) of ERISA.
"Net Proceeds" means, with respect to any Person (i) in the case of any
sale of Capital Stock by such Person or common equity contribution to such
Person, the aggregate net proceeds received by such Person after payment of
expenses, commissions and the like, if any, incurred in connection therewith;
(ii) in the case of the issuance of any Indebtedness by such Person, the
aggregate net proceeds received by such Person, after payment of expenses,
commissions and the like incurred in connection therewith; or (iii) in the
case of any exchange, exercise, conversion or surrender of outstanding
securities of any kind of the Company for or into shares of Capital Stock of
the Company which is not Disqualified Stock, the net proceeds received by the
Company upon such exchange, exercise, conversion or surrender (plus, with
respect to the issuance of any such securities after the Issue Date, the net
proceeds received by such Person upon the issuance of such securities), less
any and all payments made to the holders, e.g., on account of fractional
shares, and less all expenses, commissions and the like incurred by the
Company in connection therewith.
"Obligations" means all obligations for Principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, any Vice President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, the Controller,
the Secretary or the Assistant Secretary of such Person.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers (one of who shall be the Chief Financial Officer) or by
an Officer and either an Assistant Treasurer or an Assistant Secretary of such
Person and otherwise complying with the requirements of Sections 11.04 and
11.05.
"Opinion of Counsel" means a written opinion from legal counsel complying
with the requirements of Sections 11.04 and 11.05. Unless otherwise required
by the TIA, the legal counsel may be an employee of or counsel to the Company.
"Original Issue Discount" of any Accretion Bond means the difference
between the Issue Price and the Principal amount of the Accretion Bond.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Acquisition" means each Acquisition effected with the consent
and approval of the Board of Directors of the Person being acquired, and with
the duly obtained approval of such shareholders or other holders of equity or
other ownership interest as such Person may be required to obtain, so long as
(i) immediately prior to and immediately after the consummation of such
Acquisition, no Default or Event of Default has occurred and is continuing;
(ii) substantially all of the sales and operating profits generated by such
Person (or assets) so acquired or invested are derived from a line or lines of
business that are part of, or complimentary to, the business of the Company
described in the Prospectus; (iii) the Acquisition is incidental to the
business of the Company described in the Prospectus; (iv) an audited
consolidated balance sheet and audited statements of income, cash flow and
stockholders' equity of the Person being acquired, in each case as of its most
recent fiscal year end are delivered to the Trustee not less than five (5)
Business Days prior to the consummation of such Acquisition; (v) in the event
the Person so acquired is not a Wholly-Owned Subsidiary, the Company is
permitted to make such Acquisition pursuant to Section 4.14; and (vi) any
Indebtedness included in the cost of the Acquisition otherwise qualifying as a
Permitted Acquisition hereunder shall be permitted to be incurred pursuant to
Section 4.10 hereof.
"Permitted Investments" means (i) obligations of the United States
government due within one year; (ii) certificates of deposit or Eurodollar
deposits due within one year with a financial institution that is a member of
the Federal Reserve System having combined capital and surplus and undivided
profits of at least $500,000,000 or more; (iii) commercial paper rated at
least A-1 by Standard & Poor's Corporation or at least P-1 by Moody's
Investors Service, Inc.; (iv) debt of any state or political subdivision that
is rated among the two highest rating categories obtainable from either
Standard & Poor's Corporation or Moody's Investors Service, Inc. and is due
within one year; (v) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or unconditionally guaranteed
by the United States Government or issued by any agency thereof and backed by
the full faith and credit of the United States, in each case maturing within
one year from the date of acquisition; provided, however, that the terms of
such agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency; and (vi) Investments represented
by Hedging Obligations permitted to be made pursuant to Section 4.19.
"Permitted Liens" means, with respect to any Person, any Lien arising by
reason of (i) any judgment, decree or order of any court, so long as such Lien
is being contested in good faith and is adequately bonded, and any appropriate
legal proceedings which may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have expired; (ii)
Liens arising by operation of law for taxes, assessments, governmental charges
or claims not yet delinquent or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and if a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefore and enforcement is stayed
and which Liens are not yet enforceable against other creditors; (iii)
security for payment of workers' compensation or other insurance or social
security legislation; (iv) security for the performance of tenders, contracts
(other than contracts for the payment of money) or leases incurred in the
ordinary course of business; (v) deposits to secure public or statutory
obligations, or in lieu of surety, performance or appeal bonds, entered into
in the ordinary course of business; (vi) Liens arising by operation of law in
favor of carriers, warehousemen, landlords, mechanics, materialmen, laborers,
employees or suppliers, incurred in the ordinary course of business for sums
which are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection
thereof and if a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor and which Liens
are not yet enforceable against other creditors; (vii) easements,
rights-of-way, zoning and similar covenants and restrictions and other similar
encumbrances or title defects which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the
Property subject thereto or materially interfere with the ordinary conduct of
the business of the Company or any of its Subsidiaries; (viii) Liens arising
in the ordinary course of business in favor of custom and revenue authorities
to secure payment of custom duties; (ix) Liens existing as of the Issue Date;
and (x) Liens securing the Indebtedness of the Company and its Subsidiaries
incurred as permitted by Section 4.10 hereof.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or any
other entity or organization including a government or political subdivision
or any agency or instrumentality thereof.
"Plan" means an employment benefit plan within the meaning of Section
3(3) of ERISA.
"Principal" when used with respect to a Current Bond means the face
amount of the Current Bond, and when used with respect to an Accretion Bond
means the Issue Price of the Accretion Bond plus Accreted Interest.
"Property" or "property" means any assets or property of any kind or
nature whatsoever, real, personal or mixed (including fixtures), whether
tangible or intangible.
"Prospectus" has the meaning set forth in Section 4.14.
"Record Date" means the Record Dates specified in the Securities;
provided that if any such date is a Legal Holiday, the Record Date shall be
the first day immediately preceding such specified day that is not a Legal
Holiday.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Securities.
"Redemption Price" when used with respect to any Security to be redeemed,
means: (i) with respect to a redemption effected at the option of the Company,
an amount equal to that portion of the Principal amount to be redeemed, plus
accrued interest, if any, to the Redemption Date (subject to the right of
Holders of record on relevant Record Dates to receive interest due on an
Interest Payment Date); (ii) with respect to a redemption effected at the
request of a Holder in June during a calendar year an amount equal to the
Principal amount of the Security plus accrued interest to the Redemption Date
(subject to the right of Holders of record on relevant Record Dates to receive
interest due on an Interest Payment Date); and (iii) with respect to a
redemption effected at the request of a Holder in December during a calendar
year or effected at the request of the legal representative of the estate of a
deceased Holder or joint Holder (or if the Holder is an Individual Retirement
Account, the deceased owner of such account) an amount equal to the Principal
amount of the Security plus accrued interest, if any, to the Redemption Date
(subject to the right of Holders of record on relevant Record Dates to receive
interest due on an Interest Payment Date).
"Registrar" has the meaning provided in Section 2.03.
"Representative" means the trustee, agent or representative in respect of
any Senior Indebtedness; provided, however, that if, and for so long as, any
Senior Indebtedness lacks such a representative, then the Representative for
such Senior Indebtedness shall at all times constitute the holders of a
majority in outstanding Principal amount of such Senior Indebtedness in
respect of any Senior Indebtedness.
"Required Holders" means the Holders of at least a majority of the
aggregate Principal amount of the outstanding Securities.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend, either in cash or property, or any other distribution
on Capital Stock of the Company or any of its Subsidiaries or any payment made
to the direct or indirect holders (in their capacities as such) of Capital
Stock of the Company or any of its Subsidiaries (other than (x) dividends or
distributions payable solely in Capital Stock (other than Disqualified Stock)
or in options, warrants or other rights to purchase Capital Stock (other than
Disqualified Stock), and (y) in the case of Subsidiaries of the Company,
dividends or distributions payable to the Company or to a Wholly-Owned
Subsidiary of the Company); (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of the Company or any of its
Subsidiaries; (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for
value, prior to any scheduled maturity, scheduled repayment or scheduled
sinking fund payment, of any Indebtedness of the Company which is subordinated
in right of payment to the Securities (other than Indebtedness of the Company
acquired in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
acquisition); and (iv) the making of any payment of any management or similar
fee to any Affiliate of the Company for any period in an amount equal to any
Consolidated Net Loss of the Company for such period.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Company's Accretion Bonds and Current Bonds.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Debt Other Default" has the meaning provided in Section 10.02
hereof.
"Senior Debt Payment Default" has the meaning provided in Section 10.02
hereof.
"Senior Indebtedness" means all Indebtedness and other amounts permitted
by Section 4.10(c) or 4.10(d) or any refinancing, refunding, replacement or
extension thereof, and all amounts owing the Trustee under Section 7.07.
"Subsidiary" means with respect to any Person (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly,
owned by such Person, by one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person; or (ii) any other Person
(other than a corporation) in which such Person, one or more Subsidiaries of
such Person or such Person and one or more subsidiaries of such Person,
directly or indirectly, individually or with another Person, at the date of
determination thereof, has (a) at least a majority ownership interest or (b)
the power to elect or direct the election of a majority of the directors or
other governing body of such Person.
"Tax Event" means that the Company shall have received an opinion from
independent tax counsel experienced in such matters to the effect that, on or
after the date hereof, as a result of (i) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (ii) any amendment to, or change in, an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, in each case, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation is used or announced or which action is taken, on or after the
date hereof there is more than an insubstantial risk that interest (including
Original Issue Discount) payable on the Accretion Bonds either (a) would not
be deductible on a current accrual basis or (b) would not be deductible under
any other method, in either case, in whole or in part, by the Company (by
reason of deferral, disallowance or otherwise) for United States federal
income tax purposes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. SS 77aaa-77bbbb),
as amended, as in effect on the date of the execution of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"U.S. Government Obligations" means direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United States of
America, as at the time of payment shall be legal tender for the payment of
public and private debts.
"voting power" means with respect to any Person, the power under ordinary
circumstances, pursuant to the ownership of shares of any class or classes of
Capital Stock, to elect at least a majority of the board of directors,
managers or trustees of such Person (irrespective of whether or not, at the
time, stock of any other class or classes shall have, or might have, voting
power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" means with respect to any Person any Subsidiary
of such person, 100% of the Capital Stock of which (other than shares of
Capital Stock representing any director's qualifying shares or investments by
foreign nationals mandated by applicable law) is owned by such Person, by a
Wholly-Owned Subsidiary of such Person or by such Person and one or more
Wholly-Owned Subsidiaries of such Person.
Section 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in, and made a part of, this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Security holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
Section 1.03. Rules of Construction.
(a) 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;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) the words "include" and "including" shall be deemed to mean
"include, without limitation," and "including, without limitation";
(vii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(viii) references to Sections or Articles means references to such
Section or Article in this Indenture, unless stated otherwise; and
(ix) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or successor sections
or rules adopted by the SEC from time to time.
Article II
THE SECURITIES
Section 2.01. Accounts.
Except as provided in Section 2.15 hereof, each Security shall not be
evidenced by a promissory note. The record of beneficial ownership of the
Securities shall be maintained and updated by the Company through the
establishment and maintenance of Accounts. Each Security shall be in such
denominations as may be designated from time to time by the Company, but in no
event in an original denomination of less than $5,000, except for purchases
for individual retirement accounts and Keogh plans in which case the original
denomination shall not be less than $2,000. Separate purchases may not be
cumulated to satisfy the minimum denomination requirements.
Section 2.02. Transaction Statement.
A Security shall not be validly issued until a transaction statement
executed by a duly authorized officer of the Company is sent to the purchaser
or transferee thereof and an Account is established by the Company in the name
of such purchaser or transferee.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where (i) Securities may
be presented or surrendered for registration of transfer or for exchange (the
"Registrar"), (ii) Securities may be presented or surrendered for payment (the
"Paying Agent"), and (iii) notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company may
also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations provided, however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes. The Registrar
shall keep a register of the Securities and of their transfer and exchange.
The Company, upon notice to the Trustee, may appoint one or more co-Registrars
and one or more additional paying agents reasonably acceptable to the Trustee.
The term "Paying Agent" includes any additional paying agent. The Company
shall be the initial Registrar and Paying Agent and agent for service of
notices or demands in connection with the Securities and this Indenture .
In the event the Company utilizes any Agent other than the Company or the
Trustee, the Company shall enter into an appropriate agency agreement with
such Agent, which agreement shall incorporate the provisions of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall promptly notify the Trustee of the name and address
of any such Agent. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 7.07 hereof.
Section 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of Principal of, or interest on, the Securities, and shall notify the Trustee
of any Default by the Company (or any other obligor on the Securities) in
making any such payment. While any such Default continues, the Trustee shall
require a Paying Agent (if other than the Company) to pay all money held by it
to the Trustee . The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent (if other than
the Company) shall have no further liability for such assets. If the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Securityholders all money held by it as Paying Agent. The
Company shall notify the Trustee in writing at least 5 days before the Payment
Date of the name and address of the Paying Agent if a person other than the
Company is named Paying Agent at any time or from time to time.
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
the Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee five (5) days
before each Record Date and at such other times as the Trustee may request in
writing a list as of such date and in such form as the Trustee may reasonably
require of the names and addresses of the Holders, which list may be
conclusively relied upon by the Trustee, and the Company shall otherwise
comply with TIA Section 312(a).
Section 2.06. Transfer and Exchange.
The Securities are not negotiable instruments and cannot be transferred
without the prior written consent of the Company (which consent shall not be
unreasonably withheld). Requests to the Registrar for the transfer of the
Accounts maintained for the benefit of the Holders of the Securities shall be:
(i) made to the Registrar in writing on a form supplied by the
Company;
(ii) duly executed by the current Holder of the Account, as reflected
on the Company's records as of the date of receipt of such transfer
request, or his attorney duly authorized in writing;
(iii) accompanied by the written consent of the Company to the
transfer; and
(iv) if requested by the Company, an opinion of Holder's counsel
(which counsel shall be reasonably acceptable to the Company) that the
transfer does not violate any applicable securities laws and/or a
signature guarantee.
Upon transfer of a Security, the Company will provide the new registered
owner of the Security with an initial transaction statement which will
evidence the transfer of the Account on the Company's records, as discussed
below in Section 2.16. The Company may assess service charges to a Holder for
any registration or transfer or exchange , and the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith. The Company shall treat the individual or
entity listed on each Account maintained by the Company as the absolute owner
of the Security represented thereby for purposes of receiving payments thereon
and for all other purposes whatsoever.
Section 2.07. Reserved.
Section 2.08. Outstanding Securities.
Securities outstanding at any time are the outstanding balances of all of
the Accounts representing the Securities maintained by the Company or such
other entity as the Company designates as Registrar, except those described in
this Section as not outstanding. Except as set forth in Section 2.09, a
Security does not cease to be outstanding because the Company or any of its
Affiliates holds the Security.
If the Principal amount of any Security is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If on a Redemption Date or the Maturity Date the Paying Agent holds U.S.
Legal Tender sufficient to pay all of the Principal and interest due on the
Securities payable on that date and is not prohibited from paying such
Principal and interest due on such date, then on and after such date such
Securities cease to be outstanding and interest on them ceases to accrue.
Section 2.09. Treasury Securities.
In determining whether the Holders of the required Principal amount of
Securities have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or
other change to this Indenture, the Securities owned by the Company or an
Affiliate of the Company shall be disregarded as though they were 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 that the Trustee knows are so owned shall be disregarded.
Section 2.10. Reserved.
Section 2.11. Reserved.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall, unless the Trustee fixes another Record Date pursuant to Section 6.10,
pay the defaulted interest, plus (to the extent lawful) any interest payable
on the defaulted interest to the persons who are Holders on a subsequent
special Record Date, which date shall be a Business Day at least five (5)
Business Days prior to the payment date, in each case at the rate provided in
the Securities and this Indenture. The Company shall fix or cause to be fixed
such special Record Date and payment date in a manner reasonably satisfactory
to the Trustee. At least fifteen (15) days before the subsequent special
Record Date, the Company shall mail or cause to be mailed to each Holder, with
a copy to the Trustee, a notice that states the subsequent special Record
Date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid. The Company may also
pay defaulted interest in any other lawful manner.
Section 2.13. Deposit of Monies.
On or before 10:00 a.m. on each Interest Payment Date and the Maturity
Date, as the case may be, the Company shall deposit or cause to be deposited
with the Paying Agent, in immediately available funds, U.S. Legal Tender
sufficient to make cash payments, if any, due on such Interest Payment Date or
the Maturity Date, as the case may be, in a timely manner that permits the
Trustee to remit payment to the Holders on such Interest Payment Date or the
Maturity Date, as the case may be.
Section 2.14. Reserved.
Section 2.15. Book Entry Registration.
The Registrar shall maintain a book entry registration and transfer
system through the establishment of Accounts for the benefit of Holders of
Securities as the sole method of recording the ownership and transfer of
ownership interests in such Securities. The registered owners of the Accounts
established by the Company in connection with the purchase or transfer of the
Securities shall be deemed to be the Holders of the Securities outstanding for
all purposes under this Indenture . The Company shall promptly notify the
Registrar of the acceptance of a subscriber's order to purchase a Security and
the Registrar shall credit its book entry registration and transfer system to
the Account of each Security purchaser, the Principal amount of such Security
owned of record by the purchaser. The total amount of any Principal and/or
interest due and payable to book entry owners of the Accounts maintained by
the Company as provided in this Indenture shall be credited to such Accounts
by the Company within the time frames provided in this Indenture.
The Company shall notify the Trustee no less frequently than bi-weekly of
the establishment of new Accounts and the transfer of existing Accounts.
Accounts representing interests in the Securities shall not be
exchangeable for Accretion Bonds or Current Bonds in denominations of $5,000
(and any additional $1,000 increments in excess thereof) and fully registered
in the names of owner of the Accounts unless (a) the Company at its option
advises the Trustee in writing of its election to terminate the book-entry
system, or (b) after the occurrence of any Event of Default, Holders of a
majority of the Securities then outstanding (as determined based upon the
latest quarterly statement provided to the Trustee pursuant to Section 4.08(b)
hereof) advise the Trustee in writing that the continuation of the book-entry
system is no longer in the best interests of such holders and the Trustee
notifies all Holders of the Securities of such event and the availability of
definitive notes to the Holders of the Securities requesting such Securities
in definitive form.
Section 2.16. Initial and Monthly Statements.
(a) The Company shall provide initial transaction statements which meet
the applicable requirements of Section 8-408 of Article 8 of the Delaware
Uniform Commercial Code or any successor section to initial purchasers,
registered owners, registered pledgees, former registered owners and former
pledgees, as required by Section 8-408, within two business days of the
occurrence of the event specified in such section.
(b) The Company shall send each Holder of a Security (and each registered
pledgee) via U.S. mail not later than ten business days after each month end
in which such Holder had an outstanding balance in such holder's Account, a
statement which indicates as of the calendar month end preceding the mailing:
(i) the balance of such Account; (ii) interest credited; (iii) withdrawals
made, if any; and (iv) the interest rate paid on such Account during the
preceding calendar month. Such monthly statements shall also include, among
other things, the information required by the applicable provisions of Section
8-408 of Article 8 of the Delaware Uniform Commercial Code or any successor
section. The Company shall provide additional statements as the holders or
registered pledgees of the Securities may reasonably request from time to
time. The Company may charge such holders or pledgees requesting such
statements a fee to cover the charges incurred by the Company in providing
such additional statements.
Section 2.17. Reserved.
Section 2.18. Interest and Payment Terms.
(a) The Company promises to pay interest on the unpaid Principal amount
of the Current Bonds (and the Accretion Bonds, if the Holder so elects
pursuant to Section 3.06); provided, however, that upon the occurrence and
during the continuance of an Event of Default the Company will pay interest on
the unpaid Principal amount of the Securities at the applicable Fixed Interest
rate accruing from the most recent Interest Payment Date. The Company will pay
interest monthly in arrears on the last day of each calendar month on
Securities issued in denominations of $15,000 or more (unless the original
Holder elects quarterly payment) and quarterly in arrears on March 31, June
30, September 30 and December 31 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (the "Interest Payment
Date"), commencing on the first such date to occur following the Issue Date
for each Security. Fixed Interest on the Securities will accrue from the most
recent Interest Payment Date to which Fixed Interest has been paid or, if no
interest has been paid, from the date of issuance. Interest shall accrue with
respect to Principal on this Security to, but not including the date of
repayment of such Principal; provided, however, that if payment to the Payment
Agent occurs after 10:00 a.m., New York City time, interest shall be deemed to
accrue until the following Business Day. On each Interest Payment Date,
interest on the Securities will be paid for the immediately preceding accrual
period. To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue Principal, if any, at the Default Rate, compounded semiannually; and
(ii) overdue installments of interest, if any (without regard to any
applicable grace period) at the same rate, compounded semiannually. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. The
Record Date for determining the Holders entitled to payment of interest is the
last day of the calendar month prior to each Interest Payment Date, unless a
special Record Date has been set by the Trustee in accordance with Section
6.10.
(b) The Company promises to add Accreted Interest to the Principal amount
of the Accretion Bonds; provided, however, that upon the occurrence and during
the continuance of an Event of Default the Company will add the Accreted
Interest on the Principal amount of the Accretion Bonds at the applicable
Accreted Interest rate accruing from the most recent Accretion Date. The
Company will add the Accreted Interest to the Principal amount of the
Accretion Bonds on March 31, June 30, September 30 and December 31 of each
year, or if any such day is not a Business Day, on the next succeeding
Business Day (the "Accretion Date"), commencing on the first such date to
occur following the Issue Date for each Accretion Bond. Accreted Interest on
the Accretion Bonds will accrete from the most recent Accretion Date.
(c) The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date.
Any installment of interest payable on a Current Bond or an Accretion Bond, if
the Company or the Holder so elects pursuant to Section 3.06, that is caused
to be punctually paid or duly provided for by the Company on the applicable
Interest Payment Date shall be paid to the Holder in whose name such Security
is registered in the security register on the applicable Record Date by check
mailed to such Holder's address as it appears in the security register on such
Record Date. The payment of any interest payable in connection with the
payment of any Principal payable with respect to such Security on a Maturity
Date or Redemption Date shall be payable as provided below. Any funds with
respect to which such checks were issued remain uncollected shall be held in
accordance with Section 8.04 hereof. Any installment of interest not
punctually paid or duly provided for shall be payable in the manner and to the
Holders specified in Section 2.12 hereof.
(d) Each of the Securities shall have stated maturities of Principal as
shall be indicated in each such Security. The Company promises to pay the
Principal of each Security in full no later than the Maturity Date thereof
unless the term of such Security becomes due and payable at an earlier date by
acceleration, redemption or otherwise.
Interest on each Security shall be due and payable on each Interest
Payment Date at the interest rate applicable to such Security for the accrual
period related to such Security and such Interest Payment Date.
Notwithstanding any of the foregoing provisions with respect to payments
of Principal of and interest on the Securities, if the Securities have become
or been declared due and payable following an Event of Default, then payments
of Principal and interest on the Securities shall be made in accordance with
Article VI hereof.
The Principal payment made on any Security on any Maturity Date (or the
Redemption Price of any Security required to be redeemed), and any accrued
interest thereon, shall be payable on or after the Maturity Date or Redemption
Date therefor at the office or agency of the Company maintained by it for such
purpose pursuant to Section 2.03 hereof or at the office of any Paying Agent
for such Security.
Article III
REDEMPTION AND CONVERSION
Section 3.01. Right to Redeem; Notices to Trustee.
On and after June 30, 2001, the Securities may be redeemed, at the option
of the Company on at least 30 days' advance notice to you, in whole or in part
at the Redemption Price. The Company may at any time or from time to time
purchase Securities from Holders in market transactions and such purchases
shall not be considered redemptions. If the Redemption Date is subsequent to a
Record Date with respect to any Interest Payment Date and on or prior to such
Interest Payment Date, then such accrued interest, if any, will be paid to the
person in whose name such Securities are registered at the close of business
on such Record Date and no other interest will be payable thereon. In the
event of a partial redemption, the Trustee will select the Securities to be
redeemed by lot or by such manner as the Trustee deems fair to the Holders of
the Securities . In the event of any conflict between the Security and this
Indenture, the Indenture shall govern.
Section 3.02. Notice of Redemption.
At least thirty (30) days, but not more than sixty (60) days, before a
Redemption Date, the Company shall mail a notice of redemption by first class
mail to each Holder whose Securities are to be redeemed at the address of such
Holder appearing in the Security register maintained by the Registrar. At the
Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense; provided, that the Company shall
give the Trustee at least forty-five (45) days advance notice of the
Redemption Date. In the event of a partial redemption, the Trustee will select
the Securities to be redeemed by lot . Each notice of redemption shall
identify the Securities to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price to be paid;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption will be reflected on each
Holder's Account;
(v) that, unless the Company defaults in making the redemption
payment or such redemption payment is prevented for any reason, interest
on Securities to be redeemed ceases to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such Securities is
to receive payment of the Redemption Price upon surrender to the Paying
Agent of the Securities redeemed;
(vi) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate Principal amount of Securities to be
redeemed and the aggregate Principal amount of Securities to be reissued
to the Holders after such partial redemption;
(vii) if any Security is being redeemed in part, the portion of the
Principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in the aggregate Principal amount equal to the unredeemed
portion thereof will be issued without charge to the Security holder; and
(viii) that the notice is being sent pursuant to this Section 3.02
and pursuant to the optional redemption provisions of the Securities.
Section 3.03. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.02,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Trustee or Paying Agent,
such Securities called for redemption shall be paid at the applicable
Redemption Price. Interest installments whose maturity is on or prior to such
Redemption Date will be payable on the relevant Interest Payment Dates to the
Holders of record.
Notice of redemption shall be deemed to be given when mailed to each
Holder in the manner herein provided whether or not the Holder receives such
Notice. In any event, failure to give such notice, or any defect therein,
shall not affect the validity of the proceedings for the redemption of any
other Security.
Section 3.04. Deposit of Redemption Price.
On or prior to each Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price of all
Securities to be redeemed on that date. Upon the written request of the
Company, the Paying Agent shall promptly return to the Company any U.S. Legal
Tender so deposited which is not required for that purpose except with respect
to monies owed as obligations to the Trustee pursuant to Article VII.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on the applicable Redemption
Date, whether or not such Securities are presented for payment. If any
Security called for redemption shall not be so paid upon surrender for
redemption, interest will be paid, from the Redemption Date until such
Redemption Price is paid, on the unpaid Principal of and on any interest not
paid on such unpaid Principal, in each case, at the rate provided in the
Securities.
Section 3.05. Purchase of Securities at the Option of the Holder.
Beginning in December 2001, the Holder may tender the Securities in
whole, not in part, for redemption at the Redemption Price stated in the
Indenture under hardship circumstances. To effect redemption, the Holder may
deliver to the Company notice of redemption with the Security only during the
periods June 1 through June 30 and December 1 through December 31 each
calendar year. The Holder's notice of redemption is irrevocable, and is
subject only to the Company's acceptance. The notice must provide information
on the financial difficulty or change of circumstances of the Holder and the
Holder must provide any additional information requested by the Company on the
hardship situation. The Company has complete discretion on the basis of the
information provided or factors unrelated to the Holder's personal
circumstances to accept or reject the request for hardship redemption.
Securities will be redeemed effective the last day of the month in which the
notice of redemption is tendered to the Company, and payment of the Redemption
Price will be made 30 calendar days thereafter. The aggregate Holder
redemption of Securities in the Series in each calendar year shall not exceed
10% of the aggregate Principal amount of the Securities in the Series
outstanding on the first day of each calendar year. The Company will select
the Securities to be redeemed on a "first come - first served" basis or by
such manner as the Company deems fair to the Holders of the Securities.
In the event of the death of a Holder or joint Holder (or if the Holder
is an Individual retirement Account, the death of the owner of such account),
the legal representative of the estate of the decedent may tender the Security
in whole, not in part, for redemption at the Redemption Price stated in the
Indenture. To effect redemption, the legal representative shall deliver to the
Company notice of redemption with the Security during the six-month period
following the date of death of the deceased Holder or Individual Retirement
Account owner. The notice of redemption is irrevocable, and is subject only to
the Company's acceptance. Securities will be redeemed effective the last day
of the month in which the notice of redemption is tendered to the Company, and
payment of the Redemption Price will be made 30 calendar days thereafter.
If the Company agrees to redeem a Holder's Securities, the Company shall
notify the Trustee and the Paying Agent in writing of the Redemption Date, the
Redemption Price and the Principal amount of the Securities to be redeemed,
together with an Officers' Certificate stating that such redemption will
comply with the conditions contained herein and in the Securities.
Notwithstanding anything set forth in this Article III, the Company shall at
all times comply with Article X hereof.
In addition, the Paying Agent shall deduct from any amount payable to a
Holder pursuant to this Section 3.05 a redemption penalty as follows:
Redemption Penalty
Date of Redemption (percentage of Principal amount)
------------------ --------------------------------
December 2001 and
June 2002 10%
December 2002 and
June 2003 9%
December 2003 and
June 2004 8%
December 2004 and
June 2005 7%
December 2005 and
June 2006 6%
December 2006 and
June 2007 5%
Section 3.06. Conversion Events.
From and after (i) the date of the occurrence of a Tax Event and (ii) the
date the Company exercises such option, whichever is later (the "Option
Exercise Date"), at the option of the Company with respect to its Accretion
Bonds only, interest in lieu of future Original Issue Discount shall accrue at
the rate set forth in the related prospectus supplement on the restated
Principal amount (the "Restated Principal Amount") equal to the original
Principal amount plus Original Issue Discount accrued to the Option Exercise
Date and shall be payable quarterly on each Interest Payment Date to holders
of record at the close of business on each Record Date immediately preceding
such Interest Payment Date. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months and will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from the Option Exercise Date. Within 15 days of the occurrence of a Tax
Event, the Company shall mail a written notice of such Tax Event by
first-class mail to the Trustee and within 15 days of its exercise of such
option the Company shall mail a written notice of the Option Exercise Date by
first-class mail to the Trustee and Holders of the Accretion Bonds. From and
after the Option Exercise Date, (i) the Company shall be obligated to pay at
the Maturity Date, in lieu of the Principal amount of each Security, the
Restated Principal Amount thereof and (ii) "Issue Price and accrued Original
Issue Discount," "Issue Price plus Original Issue Discount" or similar words,
as used herein, shall mean Restated Principal Amount plus accrued and unpaid
interest with respect to any Accretion Bonds.
Holders of the Accretion Bonds also have the option of electing to
receive current interest quarterly at the interest rate set forth in the
related prospectus supplement by submitting a request to the Trustee during
the month of December of each year prior to the Maturity Date ("Holder
Exercise Date"). The Principal amount will be restated as discussed above.
Interest in lieu of future Original Issue Discount shall accrue at the rate
set forth in the related prospectus supplement on the Restated Principal
Amount and shall be payable quarterly on each Interest Payment Date to the
holder of record on the Record Date immediately preceding such Interest
Payment Date. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months and will accrue from the most recent date on
which interest has been paid or, if no interest has been paid, from the Holder
Exercise Date.
Article IV
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay the Principal of and interest on the Securities on
the dates and in the manner provided in the Securities and this Indenture. An
installment of Principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment and/or
interest then due and is not prohibited from paying such installment on such
date.
The Company shall pay interest on (i) overdue Principal at the rate set
forth in the second paragraph of paragraph 1 of the Securities, and (ii)
overdue installments of interest at the same rate, to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands described in such Section 2.03 may be made or
served at the address of the Trustee set forth in Section 2.03.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency. The Company hereby initially designates the corporate
trust office of the Trustee set forth in Section 2.03 as such office.
Section 4.03. Corporate Existence.
Except as otherwise permitted by Article V, the Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect
its existence and the existence of each of its Subsidiaries, in accordance
with the respective organizational documents of each such entity and the
rights (charter and statutory) and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve, with respect to itself, any right or franchise, and with respect to
any of its Subsidiaries, any such existence, right or franchise, if (i) the
Board of Directors of the Company shall determine reasonably and in good faith
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and (ii) the loss thereof is not adverse in any
material respect to the Holders.
Section 4.04. Payment of Taxes and Other Claims.
The Company shall and shall cause each of its Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied
or imposed upon it or any of its Subsidiaries or properties of it or any of
its Subsidiaries, and (ii) all lawful claims for labor, materials and supplies
that, if unpaid, might by law become a Lien upon the property of it or any of
its Subsidiaries; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim if either (a) the amount, applicability or validity thereof is
being contested in good faith by appropriate proceedings and an adequate
reserve has been established therefor to the extent required by GAAP, or (b)
the failure to make such payment or effect such discharge (together with all
other such failures) would not have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries, taken
as a whole.
Section 4.05. Maintenance of Properties and Insurance.
(a) The Company shall cause all Properties used or useful in the conduct
of its business or the business of any of its Subsidiaries to be maintained
and kept in satisfactory condition, repair and working order and supplied with
all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries taken as a whole; provided,
however, that nothing in this Section 4.05 shall prevent the Company or any of
its Subsidiaries from discontinuing the operation or maintenance of any of
such properties or disposing of any of them if such discontinuance or disposal
is either (i) in the ordinary course of business, (ii) in the good faith
judgment of the Board of Directors of the Company or the Subsidiary concerned,
or of the senior officers of the Company or such Subsidiary, as the case may
be, desirable in the conduct of the business of the Company or such
Subsidiary, as the case may be, or (iii) is otherwise permitted by this
Indenture.
(b) The Company shall provide or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith
opinion of the Company are adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America or
an agency or instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be customary, in the reasonable, good faith
opinion of the Company, for companies similarly situated in the industry,
unless the failure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the financial condition
or results of operations of the Company and its Subsidiaries, taken as a
whole.
(c) The Company shall and shall cause each of its Subsidiaries to keep
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Company
and each Subsidiary in accordance with GAAP consistently applied to the
Company and its Subsidiaries taken as a whole.
Section 4.06. Compliance Certificates; Notice of Default.
(a) The Company shall deliver to the Trustee, within sixty (60) days
after the end of each of the Company's first three Fiscal Quarters and within
ninety (90) days after the end of the Company's Fiscal Year, an Officers'
Certificate stating that a review of the Company's activities and the
activities of its Subsidiaries during the preceding fiscal period has been
made under the supervision of the signing Officers with a view to determining
whether it has kept, observed, performed and fulfilled its obligations under
this Indenture and further stating, as to each such Officer signing such
certificate, that to the best of his knowledge, the Company during such
preceding fiscal period has kept, observed, performed and fulfilled each and
every such covenant and no Default or Event of Default occurred during such
period and at the date of such certificate there is no Default or Event of
Default that has occurred and is continuing or, if such signers do know of
such Default or Event of Default, the certificate shall describe the Default
or Event of Default and its status with particularity and what action the
Company has taken or proposes to take with respect thereto. The Officers'
Certificate shall also include all calculations necessary to show covenant
compliance. The Officers' Certificate shall also notify the Trustee should the
Company elect to change the manner in which it fixes its fiscal year end.
(b) So long as (and to the extent) not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
Company shall deliver to the Trustee within ninety (90) days after the end of
each fiscal year a written statement by an independent public accounting firm
stating (i) that their audit examination has included a review of the terms of
this Indenture and the Securities as they relate to accounting matters, and
(ii) whether, in connection with their audit examination, any Default or Event
of Default has come to their attention and if such a Default or Event of
Default has come to their attention, specifying the nature and period of
existence thereof.
(c) The Company will deliver to the Trustee promptly, and in any event
within ten (10) days after the Company becomes aware or should reasonably have
become aware of the occurrence of any Default or Event of Default, an
Officers' Certificate describing such Default or Event of Default and its
status with particularity and what action the Company is taking or proposes to
take with respect thereto.
Section 4.07. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with the respective organizational documents of each of them and all
applicable statutes, rules, regulations, orders and restrictions of the United
States of America, all states, provinces and municipalities thereof, and of
any governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of
their respective businesses and the ownership of their respective properties,
except such the noncompliance with which would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.
Section 4.08. SEC Reports and Other Information.
(a) To the extent permitted by applicable law or regulation, whether or
not the Company is subject to Section 13(a) or 15(d) of the Exchange Act, the
Company shall file with the SEC the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
SEC pursuant to such Sections 13(a) and 15(d) if the Company were so subject,
such documents to be filed with the SEC on or prior to the respective dates by
which the Company would have been required so to file such documents if the
Company were so subject. The Company shall comply with its reporting and
filing obligations under the applicable federal securities laws. Annual
reports will contain consolidated financial statements and notes thereto,
together with an opinion thereon expressed by an independent public accounting
firm and management's discussion and analysis of financial condition and
results of operations, and quarterly reports will contain unaudited condensed
consolidated financial statements for the first three quarters of each fiscal
year. Upon qualification of this Indenture under the TIA, the Company shall
also comply with the provisions of TIA Section 314(a).
(b) The Company, or such other entity as the Company shall designate as
Registrar for the Securities shall provide the Trustee with quarterly
management reports which provide the Trustee with such information regarding
the Accounts maintained by the Company for the benefit of the Holders of the
Securities which information shall include at least the following: (i) the
outstanding balance of each Account; (ii) interest credited or withdrawals
made for the period; and (iii) the interest rate paid on each Account
maintained by the Company during the preceding quarterly period.
Section 4.09. Waiver of Stay Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law
or other law that would prohibit or forgive the Company from paying all or any
portion of the Principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
Section 4.10. Limitation on Indebtedness.
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume, issue,
guarantee or in any manner become liable for or with respect to the payment
of, any Indebtedness, except that the Company and its Subsidiaries may incur
(each of which shall be given independent effect):
(a) Indebtedness of the Company evidenced by the Securities or otherwise
arising under this Indenture, and additional Indebtedness which may be
incurred from time to time through the issuance of notes, bonds, or other
Obligations of the Company (whether under this Indenture or under some other
instrument) which is pari passu or subordinated in right of payment with the
Securities;
(b) Indebtedness of the Company and its Subsidiaries
outstanding on the Issue Date; provided, none of the instruments and
agreements evidencing or governing such Indebtedness shall be amended,
modified or supplemented after the Issue Date to change any terms of
subordination, payment of Principal, interest, fees or other amounts due, or
rights of conversion, put, exchange or other similar rights or any other
covenants, terms or conditions thereof to be less favorable to the Holders
than such terms, rights and conditions as is effect on the Issue Date.
(c) Purchase money Indebtedness of the Company described in Section
4.13(d) not to exceed an aggregate outstanding amount at any time of
$5,000,000;
(d) Indebtedness of the Company unsecured or secured by Property of the
Company, which is superior in right of payment to the Securities, in an
aggregate principal amount not to exceed the highest aggregate Principal
amount of the Securities issued under this Indenture if, immediately after
giving pro forma effect to the incurrence thereof, no Default or Event of
Default shall have occurred;
(e) Indebtedness of a Subsidiary of the Company issued to and held by the
Company or a Wholly-Owned Subsidiary of the Company; provided, however, that
any transfer of such Indebtedness (other than to the Company or a Wholly-Owned
Subsidiary of the Company) shall be deemed, in such case, to constitute a new
incurrence of such Indebtedness by the issuer thereof;
(f) Indebtedness of the Company owed to or held by a Wholly-Owned
Subsidiary of the Company that is unsecured and subordinated in right of
payment to the Securities; provided, however, that any subsequent issuance or
transfer of any Capital Stock which results in any such other Wholly-Owned
Subsidiary ceasing to be a Wholly-Owned Subsidiary of the Company, or any
transfer of such Indebtedness (other than to a Wholly-Owned Subsidiary of the
Company), shall be deemed in each case to constitute a new incurrence of such
Indebtedness by the Company;
(g) Indebtedness represented by Hedging Obligations of the Company or its
Subsidiaries with respect to Indebtedness of the Company or its Subsidiaries
(which Indebtedness is otherwise permitted to be incurred under this Section
4.10 and which Hedging Obligations are otherwise permitted to be incurred
under Section 4.19) to the extent the notional principal amount of such
Hedging Obligations does not exceed the principal amount of the Indebtedness
to which such Hedging Obligations relate;
(h) any replacements, renewals, refinancings and extensions of
Indebtedness incurred under clauses (a), (b), (c), (d), (e), and (f) above
provided that (i) any such replacement, renewal, refinancing and extension (x)
shall not provide for any mandatory redemption, amortization or sinking fund
requirement in an amount greater than or at a time prior to the amounts and
times specified in the Indebtedness being replaced, renewed, refinanced or
extended and (y) shall be contractually subordinated to the Securities at
least to the extent, if at all, that the Indebtedness being replaced, renewed,
refinanced or extended is subordinate to the Securities, (ii) any such
Indebtedness of any person must be replaced, refinanced or extended with
Indebtedness incurred by such person or by the Company, (iii) the principal
amount of Indebtedness incurred pursuant to this clause (h) (or, if such
Indebtedness provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof,
the original issue price of such Indebtedness) shall not exceed the sum of the
principal amount (or with respect to Indebtedness which provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof, the accreted value
thereof) of Indebtedness so replaced, renewed, refinanced or extended, plus
accrued interest, the amount of any premium required to be paid in connection
with such replacement, renewal, refinancing or extension pursuant to the terms
of such Indebtedness or the amount of any premium reasonably determined by the
Company as necessary to accomplish such replacement, renewal, refinancing or
extension by means of a tender offer or privately negotiated purchase and the
amount of fees and expenses incurred in connection therewith, (iv) the
covenants, terms and conditions of any such extension, renewal, refunding or
refinancing Indebtedness (and of any agreement or instrument entered into in
connection therewith) are no less favorable to the Holders than the terms of
the Indebtedness as in effect prior to such action, and (v) immediately prior
to and immediately after giving effect to any such extension, renewal,
refunding or refinancing, no Default or Event of Default shall have occurred
and be continuing; and
(i) the endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business.
Section 4.11. Limitation on Restricted Payments.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, make any Restricted Payment unless at the time of and
after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or occur as a consequence thereof; and
(b) the aggregate of all Restricted Payments declared or made after the
Issue Date through and including the date of such Restricted Payment does not
exceed 50% of the Company's Consolidated Net Income from and including January
1, 2000 to and including the last day of the fiscal quarter immediately
preceding the date of such Restricted Payment.
The provisions of this Section 4.11 shall not prohibit (i) the payment of
any dividend within sixty (60) days after the date of declaration thereof, if
such payment would comply with the provisions of this Indenture at the date of
the declaration of such payment, (ii) the retirement of any shares of Capital
Stock of the Company or Indebtedness of the Company which is subordinated in
right of payment to the Securities by conversion into, or by an exchange for,
shares of Capital Stock of the Company that are not Disqualified Stock or out
of the Net Proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of other shares of Capital Stock (other than
Disqualified Stock) of the Company, and (iii) the redemption or retirement of
Indebtedness of the Company which is subordinated in right of payment to the
Securities in exchange for, by conversion into, or out of the Net Proceeds of,
a substantially concurrent sale of subordinated Indebtedness of the Company
(other than to a Subsidiary of the Company) that is contractually subordinated
in right of payment to the Securities at least to the same extent that the
Indebtedness being redeemed or retired is subordinated to the Securities.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.11 were computed, which calculations
may be based upon the Company's latest available financial statements.
Section 4.12. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective or enter into any agreement with any person that would cause any
consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of the Company to (i) pay dividends, in cash or otherwise, or make
any other distributions on its Capital Stock or any other interest or
participation in, or measured by, its profits owned by, or pay any
Indebtedness owed to, the Company or any of its Subsidiaries, (ii) make loans
or advances to the Company or any of its Subsidiaries or (iii) transfer any of
its Properties to the Company or any of its Subsidiaries, except, in each
case, for such encumbrances or restrictions existing under or contemplated by
or by reason of customary non-assignment or sublease provisions of any
agreement of the Company or its Subsidiaries.
Section 4.13. Limitation on Liens.
Other than Permitted Liens, the Company shall not, and the Company shall
not permit, cause or suffer any of its Subsidiaries to, create, incur, assume
or suffer to exist any Lien, charge or other encumbrance of any kind with
respect to any property or assets now owned or hereafter acquired by it, which
(i) secures Indebtedness of the Company subordinated in right of payment to
the Securities, unless the Securities are secured by a Lien on such property
that is senior to such Lien; (ii) secures Indebtedness of the Company which is
pari passu in right of payment with the Securities, unless the Securities are
secured by a Lien on such Property that is equal and ratable with such Lien;
(iii) secures Indebtedness incurred to refinance Indebtedness which has been
secured by a Lien permitted under this Indenture and is permitted to be
refinanced under this Indenture, to the extent such Liens extend to or cover
Property of the Company or any of its Subsidiaries not securing the
Indebtedness so refinanced or increase the extent of such Liens; or (iv)
purchase money Liens to secure Indebtedness permitted under this Indenture (or
as extended or renewed as permitted under this Indenture) and incurred to
purchase fixed assets, unless such Indebtedness represents not less than
seventy-five percent (75%) and not more than one hundred percent (100%) of the
purchase price of such assets as of the date of purchase thereof and no
Property other than the assets so purchased secures such Indebtedness.
Section 4.14. Limitation on Investments, Loans and Advances.
The Company shall not make, and shall not permit any of its Subsidiaries
to make, any Investment, except: (i) Investments by the Company or any of its
Subsidiaries in any Wholly-Owned Subsidiary of the Company (including any such
Investment pursuant to which a Person becomes a Wholly-Owned Subsidiary of the
Company) or in the Company by any of its Subsidiaries; (ii) Investments of the
type contemplated by the prospectus included in the Company's registration
Statement on Form SB-2 (file no. 333-71091) as filed with, and declared
effective by, the SEC (the "Prospectus"); (iii) Investments permitted to be
made pursuant to Section 4.11; (iv) Investments represented by advances to
employees, officers and directors of the Company or its Subsidiaries made in
the ordinary course of business and consistent with reasonable and customary
business practices; (v) Permitted Investments; (vi) Investments in Hedging
Obligations permitted under Section 4.24; (vii) Investments represented by
loans or advances to Affiliates; and (x) Investments permitted to be made
pursuant to Section 4.10(e) and Section 4.10(f).
Section 4.15. Limitation on Transactions with Affiliates.
The Company will not, and will not permit, cause or suffer, any of its
Subsidiaries to, participate in an Affiliate Transaction, except in good faith
and on terms that are no less favorable to the Company or such Subsidiary, as
the case may be, than those that could have been obtained in a comparable
transaction on an arm's length basis from a person not an Affiliate of the
Company or such Subsidiary. With respect to any Affiliate Transaction (and
each series of related Affiliate Transactions which are similar or part of a
common plan) involving aggregate payments or other market value in excess of
$5,000,000, the Company shall deliver an Officers' Certificate to the Trustee
certifying that such Affiliate Transaction (or series of related Affiliate
Transactions) complies with the foregoing provisions and that such Affiliate
Transaction (or series of related Affiliate Transactions) was approved by the
Board of Directors of the Company. Notwithstanding the foregoing, the
restrictions set forth in this Section 4.15 shall not apply to (i) any
employment agreement, consulting agreement and indemnification obligations
entered into by the Company or any of its Subsidiaries in the ordinary course
of business and consistent with the past practice of the Company or such
Subsidiary; (ii) the payment of reasonable and customary fees to directors of
the Company who are not employees of the Company; and (iii) transactions
permitted under Sections 4.10, 4.11 and 4.14 hereof.
Section 4.16. Limitation on Liquidations, Dissolutions, Mergers and
Consolidation.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into any merger, consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose
of, all or substantially all of its property, business or assets, or make any
material change in its present method of conducting business, except (i) any
Subsidiary of the Company may be merged or consolidated with or into the
Company (provided that the Company shall be the continuing or surviving
corporation) or with or into any one or more Wholly-Owned Subsidiaries of the
Company (provided that a Wholly-Owned Subsidiary of the Company shall be the
continuing or surviving corporation) and after giving effect to any of such
transactions, no Default or Event of Default shall exist; (ii) any
Wholly-Owned Subsidiary of the Company may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise)
to the Company or any of its Wholly-Owned Subsidiaries; (iii) any Affiliate of
the Company may be merged or consolidated with or into the Company (provided
that the Company shall be the continuing or surviving corporation) or with or
into any one or more Wholly-Owned Subsidiaries of the Company (provided that a
Wholly-Owned Subsidiary of the Company shall be the continuing or surviving
corporation) and after giving effect to any of such transactions, no Default
or Event of Default shall exist; (iv) any conveyance, sale, assignment,
transfer, or disposition of property and assets contemplated by the
Registration Statement to create liquidity for repayment of the Securities; or
(v) the Company may be merged or consolidated with or into another entity,
provided that there is no material change in the business of the surviving
entity from the business of the Company, the surviving entity assumes all
obligations hereunder and under the Securities, and after giving effect to any
such transaction, no Default or Event of Default shall exist.
Section 4.17. ERISA Compliance.
The Company will not and will not permit any of its Subsidiaries to,
directly or indirectly, (i) engage in a "prohibited transaction," as such term
is defined in Section 406 of ERISA or Section 4975 of the Internal Revenue
Code, with respect to any Plan or Multiemployer Plan or knowingly consent to
any other "party in interest" or any "disqualified person," as such terms are
defined in Section 3(14) of ERISA or Section 4975(e)(2) of the Internal
Revenue Code, respectively, engaging in any "prohibited transaction," with
respect to any Plan or Multiemployer Plan maintained by the Company or any of
its Subsidiaries; (ii) permit any Plan maintained by the Company or any of its
Subsidiaries to incur any "accumulated funding deficiency," as defined in
Section 302 of ERISA or Section 412 of the Internal Revenue Code, unless such
incurrence shall have been waived in advance by the Internal Revenue Services;
(iii) terminate any Plan in a manner which could result in the imposition of a
Lien on any property of the Company or any of its Subsidiaries pursuant to
Section 4068 of ERISA; (iv) breach, or knowingly permit any employee of
officer or any trustee or administrator of any Plan maintained by the Company
or any of its Subsidiaries to breach, any fiduciary responsibility imposed
under Title I of ERISA with respect to any Plan; (v) engage in any transaction
which would result in the incurrence of a liability under section 4069 of
ERISA; or (vi) fail to make contributions to a Plan or Multiemployer Plan
which results in the imposition of a Lien on any property of the Company or
any of its Subsidiaries pursuant to Section 302(f) of ERISA or Section 412(n)
of the Internal Revenue Code.
Section 4.18. Limitation on Acquisitions.
The Company will not and will not permit any of its Subsidiaries to enter
into any agreement, contract, binding commitment or other arrangement
providing for any Acquisition, or take any action to solicit the tender of
securities or proxies in respect thereof in order to effect any Acquisition,
other than Permitted Acquisitions.
Section 4.19. Limitation on Hedging Obligations.
The Company will not and will not permit any of its Subsidiaries to incur
any Hedging Obligations or enter into any agreements, arrangements, devices or
instruments relating to Hedging Obligations, except for Hedging Obligations
the aggregate notional amount of which does not exceed $75,000,000.
Section 4.20. Calculation of Original Issue Discount.
The Company shall file with the Trustee and the Registrar promptly at the
end of each calendar year (i) a written notice specifying the amount of
Original Issue Discount (including daily rates and accrual periods) accrued on
the outstanding Accretion Bonds as of the end of such year and (ii) such other
specific information relating to such Original Issue Discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to
time.
Article V
SUCCESSOR CORPORATION
Section 5.01. Consolidation, Merger, Conveyance, Transfer or Lease.
The Company shall not consolidate with or merge with or into or sell,
assign, convey, lease, transfer or otherwise dispose of all or substantially
all of its properties and assets (determined on a consolidated basis for the
Company and its Subsidiaries, taken as a whole) to another Person or Persons,
in a single transaction or through a series of related transactions, or cause
or permit any of its Subsidiaries to do any of the foregoing, unless:
(a) the Company is the continuing Person, or the Person formed by or
surviving such consolidation or merger or the Person to which such sale,
assignment, conveyance, lease, transfer or other disposition is made (the
"Surviving Entity") is a corporation organized and validly existing under the
laws of the United States, any State thereof or the District of Columbia;
(b) the Surviving Entity shall expressly assume, by a supplemental
indenture executed and delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, all of the obligations of the Company
under the Securities and this Indenture;
(c) immediately before and immediately after giving effect to such
transaction, or series of transactions (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing; and
(d) the Company or the surviving entity shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
(i) if a supplemental indenture is required in connection with such
transaction or series of transactions, such supplemental indenture complies
with this Section 5.01, and (ii) all conditions precedent in this Indenture
relating to the transaction or series of transactions have been satisfied.
Section 5.02. Successor Entity Substituted.
Upon any consolidation, merger or any transfer of all or substantially
all of the assets of the Company in accordance with Section 5.01, the
Surviving Entity formed by such consolidation or into or with which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such surviving entity had been named
as the Company herein and the Company shall be discharged from all obligations
and covenants under the Indenture and the Securities.
Article VI
DEFAULT AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(i) after the Option Exercise Date or the Holder Exercise Date, as
such terms are defined in Section 3.06 hereof, the Company default in the
payment of interest upon any Security when such interest becomes due and
payable, and such default continues for a period of 30 days;
(ii) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and continuance of any such default
for a period of thirty (30) days; or
(iii) the Company defaults in the payment of Principal or Redemption
Price on any Security as and when due and payable (including a default in
payment upon an offer to purchase required to be made by this Indenture);
or
(iv) the Company defaults in the performance, or breach, of any
material covenant, obligation or agreement in this Indenture (other than
defaults specified in clause (i) or (ii) above), and such default or
breach continues for a period of thirty (30) days after written notice to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 30% in aggregate Principal amount of the outstanding
Securities; or
(v) any representation or warranty contained in the Financing
Documents or any writing furnished by the Company or any of its
Subsidiaries to any Holder, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they were
made, not misleading; or
(vi) failure by the Company or any of its Subsidiaries (a) to make
any payment when due with respect to any other Indebtedness under one or
more classes or issues of Indebtedness which one or more classes or
issues of Indebtedness are in an aggregate principal amount of $5,000,000
or more and such failure results in acceleration of the maturity thereof;
or (b) to perform any term, covenant, condition, or provision of one or
more classes or issues of Indebtedness which one or more classes or
issues of Indebtedness are in an aggregate principal amount of $5,000,000
or more, which failure, in the case of this clause (b), results in an
acceleration of the maturity thereof; or
(vii) one or more judgments, orders or decrees for the payment of
money in excess of $5,000,000, either individually or in an aggregate
amount, shall be entered against the Company or any of its Subsidiaries
or any of their respective properties and shall not be discharged and
there shall have been a period of thirty (30) days during which a stay of
enforcement of such judgment or order, by reason of pending appeal or
otherwise, shall not be in effect; or
(viii) any of the Financing Documents ceases to be in full force and
effect (other than as a result of termination pursuant to its terms) or
any such Financing Document or any of its material provisions is declared
or asserted to be null and void or otherwise becomes unenforceable in
accordance with its terms; or
(ix) the Company or any Material Subsidiary of the Company pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding with respect to
itself,
(B) consents to the entry of an order for relief against it
in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for
all or any material part of its property,
(D) makes a general assignment for the benefit of its
creditors,
(E) consents to or acquiesces in the institution of
bankruptcy or insolvency proceedings against it,
(F) shall generally not pay its debts when such debts become
due or shall admit in writing its inability to pay its debts
generally, or
(G) takes any corporate action in furtherance of or to
facilitate, conditionally or otherwise, any of the foregoing; or
(x) a court of competent jurisdiction enters a decree, judgment or
order under any Bankruptcy Law that:
(A) is for relief against the Company or any Material
Subsidiary of the Company in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any Material
Subsidiary of the Company for all or substantially all of its
properties, or
(C) orders the winding-up or liquidation of the Company or
any Material Subsidiary of the Company, and in each case the order
or decree remains unstayed and in effect for sixty (60) days; or
(xi) this Indenture ceases to be in full force and effect or ceases
to give the Trustee, an any material respect, the liens, rights, powers
and privileges purported to be created thereby, in each case, as
determined by a court of competent jurisdiction.
The Company shall, within sixty (60) days following the end of each
Fiscal Quarter, file with the Trustee an Officers' Certificate certifying that
the Company has performed all of its obligations under this Indenture in all
material respects and that no Event of Default has occurred during the
preceding Fiscal Quarter or in the event any such Event of Default has
occurred, the facts and circumstances resulting in such Event of Default. The
Company shall promptly upon the occurrence thereof provide notice to the
Trustee of an Event of Default.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (viii) or (ix) above with respect to the Company or any Material
Subsidiary of the Company) occurs and is continuing, then the Trustee or the
Holders of at least thirty percent (30%) in aggregate Principal amount of the
outstanding Securities may, by written notice to the Company and the Trustee,
and the Trustee upon the request of the Holders of not less than thirty
percent (30%) in aggregate Principal amount of the outstanding Securities
shall, subject in each case to Section 10.02(e), declare the Principal of and
accrued and unpaid interest, if any, on all the Securities on the date of such
declaration to be due and payable immediately (the "Default Amount"). Upon any
such declaration, the Default Amount shall become due and payable immediately.
If an Event of Default specified in clause (viii) or (ix) above with respect
to the Company occurs and is continuing, then the Default Amount on all of the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
After a declaration of acceleration, the Required Holders may, by notice
to the Trustee, rescind such declaration of acceleration if all existing
Events of Default have been cured or waived, other than nonpayment of the
Default Amount on the Securities that have become due solely as a result of
such acceleration and if the rescission of acceleration would not conflict
with any judgment, order or decree by a court of competent jurisdiction. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may, subject
to Section 10.02(e), pursue any available remedy by proceeding at law or in
equity 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 as may be required or permitted thereunder.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Subject to Sections 6.02, 6.07 and 9.02, the Required Holders by notice
to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of Principal of or interest on
any Security as specified in clauses (i) and (ii) of Section 6.01 or in
respect of any provision hereof which cannot be modified or amended without
the consent of the Holder so affected pursuant to Section 9.02. When a Default
or Event of Default is so waived, it shall be deemed cured and ceases to
exist, but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05. Control by Required Holders.
The Required Holders 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 including, without limitation, any remedies provided
for in Section 6.03. Subject to Section 7.01, however, the Trustee may refuse
to follow any direction that conflicts with any law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability unless
the Trustee has asked for and received indemnification reasonably satisfactory
to it against any loss, liability or expense caused by its following such
direction; provided that the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(a) the Holder gives to the Trustee notice of a continuing Event of
Default;
(b) Holders of at least thirty percent (30%) in Principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(c) such Holders offer to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense to be incurred in compliance
with such request;
(d) the Trustee does not institute the proceeding within sixty (60) days
after receipt of the request and the offer of indemnity; and
(e) during such sixty-(60) day period the Required Holders do not give
the Trustee a direction which, in the opinion of the Trustee, is inconsistent
with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, except as set
forth in Article X, the right of any Holder to receive payment of Principal of
and interest on a Security, on or after the respective due dates expressed in
such Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of Principal or interest specified in
clause (i) or (ii) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor on the Securities for the whole amount of
Principal and accrued interest remaining unpaid, together with interest on
overdue Principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by the Securities and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or
any of their respective property and shall be entitled and empowered to
collect and receive any monies or other securities or property payable or
deliverable upon the conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Securityholder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Securityholders, to first pay to the Trustee
any amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agent and counsel, and any
other amounts due the Trustee under Section 7.07. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Securityholder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article VI or
otherwise, it shall pay out the money and other property in the following
order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for Principal and interest owing under the
Securities, ratably, according to the amounts due and payable on the
Securities for Principal, in the following order of priority: first to
any premiums, and then to interest; and
Third: to the Company or any other obligor on the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a Record Date and
payment date for any payment to Securityholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more
than thirty percent (30%) in Principal amount of the outstanding Securities.
Section 6.12. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 6.13. Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any Security to
exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VI or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Article VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
Section 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as
a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(i) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no others, and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture but need not verify the accuracy of the contents thereof.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity reasonably satisfactory to it against any
loss, liability or expense.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c), (d) and (e) of this Section 7.01.
(g) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree with the Company, and the
Trustee shall not be responsible to invest such money or assets except at the
direction of the Company. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel and may require an Officers' Certificate or an Opinion of Counsel,
which shall conform to Sections 11.04 and 11.05 hereof. 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 consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(d) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent (other than the
negligence or misconduct of an agent who is an employee of the Trustee)
appointed with due care.
(e) The Trustee shall not be liable for any action that it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers, provided that the Trustee's conduct does not constitute negligence
or bad faith.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, upon reasonable notice to the Company, to examine the
books, records, and premises of the Company, personally or by agent or
attorney.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred by
it in compliance with such request, order or direction.
Section 7.03. 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 Company, any
Subsidiary of the Company or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities. Further, the Trustee shall not be
accountable for the Company's use of the proceeds from the Securities, nor be
responsible for any statement in the Prospectus or Securities other than the
Trustee's certificate of authentication.
Section 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and after
written notice to the Trustee of such Default or Event of Default is received
by the Trustee, the Trustee shall mail to each Securityholder, as their names
and addresses appear on the Securityholder list described in Section 2.05
hereof, notice of the Default or Event of Default within thirty (30) days
after the Trustee has received such written notice that a Default or Event of
Default has occurred, unless such Default or Event of Default shall have been
cured or waived. Except in the case of a Default or an Event of Default in
payment of Principal of or interest on, any Security, and a Default or Event
of Default that resulted from the failure to comply with Section 5.01 hereof,
the Trustee may withhold the notice if and so long as its Board of Directors,
the executive committee of its Board of Directors or a committee of its
directors and/or Trust Officers in good faith determines that withholding the
notice is in the interest of the Securityholders.
Section 7.06. Reports by Trustee to Holders.
If required by law, within sixty (60) days after each May 15 beginning
with the May 15 following the date of this Indenture, the Trustee shall mail
to the Holders, at the Company's expense, a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2) to the extent applicable. The Trustee
shall also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange or market on which the Securities
are listed or quoted. The Company shall notify the Trustee when the Securities
are listed on any stock exchange or quoted on any market.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder. Any law on
compensation of a trustee of an express trust shall not limit the Trustee's
compensation. The Company shall reimburse the Trustee upon request for all tax
obligations imposed on the Trustee related to this Indenture and all
reasonable out-of-pocket expenses incurred or made by it. Such expenses shall
include the reasonable fees and expenses of the Trustee's agents, compensation
and counsel.
The Company shall indemnify the Trustee and its agents for, and hold them
harmless against, any loss, liability or expense (including reasonable
attorneys' fees and expenses) incurred by them without negligence, bad faith
or willful misconduct on their part, arising out of or in connection with the
administration of this trust including the reasonable costs and expenses of
enforcing this Indenture against the Company (including Section 7.07 hereof)
and of defending themselves against any claim (whether asserted by any
Securityholder or the Company) or liability in connection with the exercise or
performance of any of their rights, powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee
for which it may seek indemnity. The Company need not pay for any settlement
made without its written consent. The Company need not reimburse any expense
or indemnify against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Securities on all assets or money held or collected by the Trustee, in its
capacity as Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(viii) or (ix) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law. This Section 7.07 shall survive the
termination of this Indenture.
Section 7.08. 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 7.08.
The Trustee may resign by so notifying the Company in writing at least
thirty (30) days prior to the date of the proposed resignation; provided,
however, that no such resignation shall be effective until a successor Trustee
has accepted its appointment pursuant to this Section 7.08. The Required
Holders may remove the Trustee by so notifying the Company and the Trustee and
may appoint a successor Trustee with the Company's consent. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.01 or 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a receiver Custodian or other public officer takes charge of the
Trustee or its property; or
(d) 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 Company shall notify each Holder of such event
and shall promptly appoint a successor Trustee. Within one (1) year after the
successor Trustee takes office, the Required Holders may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee does not take office within sixty (60) days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least ten percent (10%) in Principal amount of the
outstanding Securities may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Security holder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
Section 7.10. Eligibility: Disqualification.
This Indenture shall always have a Trustee who satisfies the requirement
of TIA Sections 310(a)(1) and 310(b). The Trustee (or in the case of a
corporation included in a bank holding company system, the related bank
holding company) shall always have a combined capital and surplus of at least
$150,000 as set forth in its most recent published annual report of condition.
In addition, if the Trustee is a corporation included in a bank holding
company system, the Trustee, independently of such bank holding company, shall
meet the capital requirements of TIA Section 310(a)(2). The Trustee shall
comply with TIA Section 310(b) including the optional provision permitted by
the second sentence of TIA Section 310(b)(9); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
Article VIII
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01. Discharge of Indenture.
This Indenture shall cease to be of further effect (except that the
Company's obligations under Sections 7.07, 8.04 and 8.05 shall survive) as to
all outstanding Securities when the Company has paid all sums payable
hereunder. In addition, the Company may terminate all of its obligations under
this Indenture (except the Company's obligations under Sections 7.07, 8.04 and
8.05) if:
(a) all Securities have otherwise become due and payable in accordance
with the terms of this Indenture (including the provisions of Article X);
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee, as trust funds in trust solely for the benefit of the Holders for
that purpose, U.S. Legal Tender and/or U.S. Government Obligations sufficient
to pay Principal of and interest, if any, on the outstanding Securities;
provided that the Trustee shall have been irrevocably instructed to apply such
U.S. Legal Tender and/or U.S. Government Obligations to the payment of said
Principal and interest with respect to the Securities;
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's obligation under the
Securities and this Indenture have been complied with; and
(d) the Company shall have paid all sums payable by it hereunder.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 7.07, 8.04 and 8.05 hereof shall survive.
After such delivery or irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities and this Indenture except for those surviving obligations specified
above.
Section 8.02. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either paragraph (b) or paragraph
(c), as set forth below , applied to the outstanding Securities upon
compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to be released
and discharged from its obligations with respect to the outstanding Securities
on the date the conditions set forth in paragraph (d) below are satisfied
(hereinafter, "legal defeasance"). For this purpose, such legal defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of paragraph (e) below and
the other Sections of and matters under this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the Principal of and interest on such Securities when such payments
are due, (ii) the Company's obligations with respect to such Securities under
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.02, 7.07, 7.08, 8.03, 8.04 and 8.05,
(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and (iv) this Section 8.02. Subject to compliance with this Section
8.02, the Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below
with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article V and in Sections
4.10 through 4.16 with respect to the outstanding Securities on and after the
date the conditions set forth in paragraph (d) below are satisfied
(hereinafter, "covenant defeasance"), and the Securities shall thereafter be
deemed to be not "outstanding" for the purpose of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the outstanding Securities,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any
such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 6.01, but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 who shall agree to comply with the
provisions of this Section 8.02 applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) U.S. Legal Tender in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal of and
interest in respect thereof in accordance with their terms will provide
(without giving effect to the reinvestment of any interest thereon), not
later than one (1) day before the due date of any payment, U.S. Legal
Tender in an amount, or (C) a combination thereof, sufficient, in the
opinion of a firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge Principal of and interest, on the
outstanding Securities on the Maturity Date of such Principal or
installment of Principal or interest in accordance with the terms of this
Indenture and of such Securities; provided, however, that the Trustee (or
other qualifying trustee) shall have received an irrevocable Company
Order instructing the Trustee (or other qualifying trustee) to apply such
U.S. Legal Tender or the proceeds of such U.S. Government Obligations to
said payments with respect to the Securities;
(ii) no Default or Event of Default or event which with notice or
lapse of time or both would become a Default or an Event of Default with
respect to the Securities shall have occurred and be continuing on the
date of such deposit or, in so far as Sections 6.01(viii) and (ix) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or any other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of them is
bound;
(iv) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (y) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a
result of such legal defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would
have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c)
above, an Opinion of Counsel to the effect that, (x) the trust funds will
not be subject to any rights of any other holders of any other
Indebtedness of the Company after the 91st day following the deposit, and
(y) after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Law;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (A) all
conditions precedent provided for relating to either the legal defeasance
under paragraph (b) above or the covenant defeasance under paragraph (c)
above, as the case may be, have been complied with; and (B) if any other
Indebtedness of the Company (including, without limitation, the Senior
Indebtedness) shall then be outstanding, such legal defeasance will not
violate the provisions of the agreements or instruments evidencing such
Indebtedness; and
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities over other creditors
of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d)
above in respect of the outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such Securities of all
sums due and to become due thereon in respect of Principal, and interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Securities.
Anything in this Section 8.02 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the
request, in writing, by the Company any money or U.S. Government Obligations
held by it as provided in paragraph (d) above which, in the opinion of a firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or
covenant defeasance.
Section 8.03. Application of Trust Money.
The Trustee shall hold in trust U.S. Legal Tender or U.S. Government
Obligations deposited with it pursuant to Sections 8.01 and 8.02, and shall
apply the deposited U.S. Legal Tender and the U.S. Legal Tender from U.S.
Government Obligations in accordance with this Indenture to the payment of
Principal of and interest on the Securities.
Section 8.04. Repayment to Company.
Subject to Sections 7.07, 8.01 and 8.02, the Trustee shall, subject to
Article X, promptly pay to the Company, upon receipt by the Trustee of an
Officers' Certificate, any excess money, determined in accordance with
Sections 8.02(d)(i) and (e), held by it at any time. The Trustee and the
Paying Agent shall pay to the Company upon receipt by the Trustee or the
Paying Agent, as the case may be, of an Officers' Certificate, any money held
by it for the payment of Principal or interest that remains unclaimed for two
(2) years, provided, however, that the Trustee and the Paying Agent before
being required to make any payment may, but need not, at the expense of the
Company, cause to be published once in a newspaper of general circulation in
The City of New York or mail to each Holder entitled to such money notice that
such money remains unclaimed and that after a date specified therein, which
shall be at least thirty (30) days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Securityholders entitled to money
must look solely to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
Section 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender
or U.S. Government Obligations in accordance with this Indenture by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then and only then the Company's obligations under this Indenture
and the Securities shall be revived and reinstated as though no deposit had
been made pursuant to this Indenture until such time as the Trustee is
permitted to apply all such U.S. Legal Tender or U.S. Government Obligations
in accordance with this Indenture; provided, however, that if the Company has
made any payment of Principal of or interest on of any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the U.S.
Legal Tender or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 8.06. Acknowledgment of Discharge by Trustee.
After (i) the conditions of Section 8.02 have been satisfied; (ii) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee upon written
request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture except for those surviving obligations
specified in Section 8.01.
Article IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company, when authorized by its Board Resolution, and the Trustee,
together, may without notice to or the consent of any Securityholder amend,
waive or supplement this Indenture or the Securities:
(i) to cure any ambiguity, defect or inconsistency or to make any
other provisions with respect to matters or questions arising under this
Indenture; provided that such action does not adversely affect the rights
of any Holder;
(ii) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company, or to provide any additional rights or benefits to the Holders;
(iii) to evidence the succession of another person to the Company,
and the assumption by any such successor of the obligations of the
Company herein and in the Securities in accordance with Article V;
(iv) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(v) to make any other change that does not adversely affect the
rights of any Securityholders hereunder;
(vi) to comply with the TIA; or
(vii) to comply with any requirements of the SEC in connection with
the qualification of this Indenture under the TIA;
provided that the Company has delivered to the Trustee an Opinion of Counsel
and an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
Section 9.02. With Consent of Holders.
Subject to Section 6.07, the Company when authorized by its Board
Resolution, and the Trustee, together, with the written consent of the
Required Holders, may amend or supplement this Indenture or the Securities,
without notice to any other Securityholders. However, without the consent of
each Securityholder affected, no amendment, supplement or waiver, including a
waiver pursuant to Section 6.04, may:
(i) reduce the Principal amount of any Security or premium, if any,
with respect thereto;
(ii) change the Maturity Date of, or alter the redemption or
repurchase or other provisions of the Securities, in a manner that
adversely affects the rights of any Holder;
(iii) reduce the percentage in Principal amount outstanding of
Securities which must consent to an amendment, supplement or waiver or
consent to take any action under this Indenture or the Securities;
(iv) impair the right to institute suit for the enforcement of any
payment on or with respect to the Securities;
(v) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Securities or the rights
of Holders to recover the Principal of, interest on, any Security;
(vi) make any change in or affecting the ranking of the Securities
with respect to any other obligation of the Company or any Subsidiary in
a way that adversely affects the rights of any Holder;
(vii) reduce the interest rate or extend the time for payment of
interest, if any, on the Securities;
(viii) make the Principal of, premium, if any, or the interest on,
any Security payable with anything, at any place of payment or in any
manner other then as provided for in this Indenture and the Security as
in effect on the date hereof; or
(ix) make any changes in this Section 9.02 in a manner that
adversely affects the rights of any Holder.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, prior to becoming effective, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of his
Security by notice to the Trustee or the Company if such notice is received by
the Trustee or the Company before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite Principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver. Notwithstanding the above, nothing in
this paragraph shall impair the right of any Securityholder under Section
316(b) of the TIA.
The Company may, but shall not be obligated to, fix a Record Date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a Record Date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those persons who were
Holders at such Record Date (or their duly designated proxies), and only those
persons, shall be entitled to revoke any consent previously given, whether or
not such persons continue to be Holders after such Record Date. No such
consent shall be valid or effective for more than ninety (90) days after such
Record Date unless consents from Holders of the Principal amount of Securities
required hereunder for such amendment, supplement or waiver to be effective
shall have been given and not revoked within such ninety (90) day period.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder, unless it makes a change described in any of clauses (i)
through (x) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided, however, that any
such waiver shall not impair or affect the right of any Holder to receive
payment of Principal of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable expressed in such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates.
Section 9.05. Reserved.
Section 9.06. Trustee To Sign Amendments, Etc.
Subject to the next sentence, the Trustee shall execute any amendment,
supplement or waiver authorized pursuant to this Article IX, provided,
however, that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture. The Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate each stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this Indenture and that all
conditions precedent in connection therewith have been satisfied.
Article X
SUBORDINATION
Section 10.01. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder (and each Person
holding any Security, whether upon original issue, or upon transfer,
assignment or exchange thereof) of the Securities, by its acceptance thereof,
likewise covenants and agrees that: (i) all Securities shall be issued subject
to the provisions of this Article X; (ii) the payment of the Principal of, and
interest on, the Securities by the Company shall, to the extent and in the
manner herein set forth, be subordinated and junior in right of payment to the
prior payment in full, in cash or Cash Equivalents, of the Senior
Indebtedness; and (iii) the subordination is for the benefit of, and shall be
relied upon and be enforceable directly by, the holders of Senior
Indebtedness. The Company and each Holder hereby agree not to amend, modify or
change in any manner any provision of this Article X (and any defined term
used in this Article X) so that the terms and conditions hereof, as so
amended, modified or changed, are less favorable to the holders of the Senior
Indebtedness and their Representative than the terms hereof on the Issue Date,
without the prior written consent of the necessary holders of Senior
Indebtedness.
Section 10.02. Suspension of Payment on Securities in Certain Events.
(a) If (i) any default occurs and is continuing after the expiration of
any applicable cure period (each a "Senior Debt Payment Default"), in the
payment when due, whether at maturity, upon any redemption, by declaration or
otherwise, of any principal of, or interest on the Senior Indebtedness, or
fees or other amounts due under the terms of the Senior Indebtedness, and (ii)
the Representative of the holders of the Senior Indebtedness gives written
notice (a "Default Notice") of such Senior Debt Payment Default to the
Trustee, then no payment of any kind or character shall be made by or on
behalf of the Company or any other Person on its behalf with respect to any
Principal of, or interest on or fees or other amounts due with respect to, the
Securities or to redeem, repurchase or otherwise acquire any of the Securities
for cash or property or otherwise, until such payment is made in full or
Senior Payment Default has been cured, waived or has ceased to exist.
(b) If (i) any event of default other than a Senior Debt Payment Default
(a "Senior Debt Other Default") occurs and is continuing with respect to the
Senior Indebtedness, as such Senior Debt Other Default is defined in the
instrument creating or evidencing such Senior Indebtedness, permitting the
holders of such Senior Indebtedness to accelerate the maturity thereof, and
(ii) the Representative of the holders of the Senior Indebtedness gives a
Default Notice to the Trustee, then until the earlier of (A) the Trustee
receiving notice from the Representative of the holders of the Senior
Indebtedness terminating the Blockage Period (as defined below), (B) the date
on which the Senior Debt Other Default giving rise to the Blockage Period is
cured or waived, or (C) 180 days after the delivery of such Default Notice
(the "Blockage Period"), neither the Company nor any other Person on its
behalf shall make any payment of any kind or character with respect to any
Principal of, or interest on, or fees or other amounts due with respect to the
Securities, or redeem, repurchase or otherwise acquire any of the Securities
for cash or property or otherwise; provided, however, that if such Senior
Indebtedness has not been accelerated or become the subject of judicial
proceedings within the Blockage Period, then the Company shall resume making
any and all required payments in respect of the Securities. At the expiration
or termination, as applicable, of such Blockage Period the Company shall
promptly pay to the Trustee all sums not paid during such Blockage Period as a
result of this subsection (b). Notwithstanding anything herein to the
contrary, in no event will a Blockage Period extend beyond 180 days from the
date of the Senior Debt Other Default and only one such Blockage Period may be
commenced within any period of 360 consecutive days. No Senior Debt Other
Default or event which, with the giving of notice and/or lapse of time or
otherwise, would become a Senior Debt Other Default which existed on the date
of the commencement of such Blockage Period, may be used as the basis for
declaring any subsequent Blockage Period unless such Senior Debt Other Default
or event, as the case may be, shall in the interim have been cured or waived
for a period of not less than ninety (90) consecutive days.
(c) In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any Holder when such payment is prohibited by
Sections 10.02(a) and (b), then unless and until such payment is no longer
prohibited by this Section 10.02, such payment shall be held in trust for the
benefit of, and shall as soon practicable be paid over or delivered to, the
Representative of the holders of the Senior Indebtedness. No amount paid by
the Company, or any other Person on its behalf, to the Trustee or any Holder
of the Securities, and paid over by such Person to the Representative of the
holders of the Senior Indebtedness pursuant to this Article X shall, as
between the Company and the Holders of the Securities, be deemed a payment by
the Company to or on account of any payments due in respect of the Securities.
(d) The Company shall give prompt written notice to the Trustee of any
Senior Debt Payment Default or any Senior Debt Other Default, under the Senior
Indebtedness or under any agreement pursuant to which Senior Indebtedness may
have been issued. Failure to give such notice shall not affect the
subordination of the Securities to the Senior Indebtedness provided in this
Article X.
(e) Nothing contained in this Article X shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies available under this Indenture or otherwise; provided that the
Trustee or the Holders shall, prior to commencing any such action, provide the
Representative of the holders of the Senior Indebtedness with five (5) days
prior written notice of its intention to take such action; provided further
that all Senior Indebtedness thereafter due or declared to be due shall first
be paid in full, in cash or Cash Equivalents, before the Holders are entitled
to receive any payment of any kind or character with respect to Principal of,
or interest on or fees or other amounts due with respect to, the Securities.
Section 10.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company.
(a) Upon any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to creditors upon any
liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets of the Company or in a
bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Senior Indebtedness shall first be paid in full in, cash or
Cash Equivalents (or such payment shall be duly provided for), before any
payment or distribution of any kind or character is made on account of any
Principal of, or interest on, or fees or other amounts due with respect to,
the Securities, or for the acquisition of any of the Securities for cash or
property or otherwise. Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Securities or the
Trustee under this Indenture would be entitled, except for the provisions
hereof, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders or by the Trustee under this Indenture if
received by them, to the Representative of the holders of the Senior
Indebtedness, for application to the payment of Senior Indebtedness remaining
unpaid until all such Senior Indebtedness has been paid in full, in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution
or provision therefor to or for the holders of Senior Indebtedness.
Notwithstanding anything herein to the contrary, the Company's obligations to
the Trustee under Section 7.07 shall at all times be deemed Senior
Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside
or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person, the Senior Indebtedness or
part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment has not occurred.
(c) The consolidation of the Company with, or the merger of the Company
with or into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article V hereof and as long as permitted under the terms of the Senior
Indebtedness shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, assume
in writing, to the reasonable satisfaction of the Representative, the
Company's obligations hereunder in accordance with Article V hereof.
(d) The Company shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of the Company, but
failure to give such notice shall not affect the subordination of the
Securities to the Senior Indebtedness provided in this Article X.
Section 10.04. Holders to be Subrogated to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full, in cash or Cash Equivalents, of the
Senior Indebtedness, the Holders shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the Securities shall be paid or converted in full. For the purposes of
such subrogation, no such payments or distributions of cash, property or
securities of the Company to the holders of the Senior Indebtedness by or on
behalf of the Company or by or on behalf of the Holders by virtue of this
Article X which otherwise would have been made to the Holders shall, as
between the Company and the Holders, be deemed to be a payment by the Company
to or on account of the Senior Indebtedness, it being understood that the
provisions of this Article X are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness, on the other hand.
Section 10.05. Obligations of the Company Unconditional.
Nothing contained in this Article X or elsewhere in this Indenture or in
the Securities, is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the Principal of, and interest on, the Securities as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of the Senior Indebtedness,
nor shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article X of
the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy. Upon any payment
or distribution of cash, property or securities of the Company referred to in
this Article X, the Trustee, subject to the provisions of Sections 7.01 and
7.02, and the Holders shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which any liquidation, dissolution,
winding-up or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee or agent or other Person
making any payment or distribution to the Trustee or to the Holders for the
purpose of ascertaining (i) the Persons entitled to participate in such
payment or distribution, (ii) the holders of Senior Indebtedness and other
Indebtedness of the Company, (iii) the amount thereof or payable thereon, (iv)
the amount or amounts paid or distributed thereon, and (iv) all other facts
pertinent thereto or to this Article X. Nothing in this Article X shall apply
to the claims of, or payments to, the Trustee under or pursuant to Section
7.07. The Trustee, subject to Section 1.01, shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself
to be the Representative of the holders of the Senior Indebtedness. In the
event that the Trustee determines in good faith that any evidence is required
with respect to the right of any Person as a Representative of the holders of
the Senior Indebtedness, the Trustee may request such Person to furnish
evidence thereof to the reasonable satisfaction of the Trustee, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to right of such Person to receive such
payment on behalf of the holders of the Secured Indebtedness.
Section 10.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article X. Regardless of anything to the contrary contained in this Article X
or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any Senior Debt Payment Default or Senior Debt
Other Default or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing from the Company, or from a holder of Senior Indebtedness or
a Representative thereof, together with proof satisfactory to the Trustee of
such holding of Senior Indebtedness or of the authority of such
Representative, and, prior to the receipt of any such written notice, the
Trustee shall be entitled to assume (in the absence of actual knowledge to the
contrary), subject to the provisions of Section 7.01 and 7.02 that no such
facts exist.
Section 10.07. Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust with
the Trustee pursuant to and in accordance with Sections 8.01 and 8.02 shall be
for the sole benefit of the Holders of the Securities and, to the extent
allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article X. Otherwise, any deposit of assets,
property or securities by or on behalf of the Company with the Trustee or any
Paying Agent (whether or not in trust) for the payment of Principal of, or
interest on, any Securities shall be subject to the provisions of this Article
X; provided, however, that if prior to the second Business Day preceding the
date on which by the terms of this Indenture any such assets may become
distributable for any purpose (including, without limitation, the payment of
either Principal of, or interest on, any Security) the Trustee or such Paying
Agent shall not have received with respect to such assets the notice provided
for in Section 10.06, then the Trustee or such Paying Agent shall have full
power and authority to receive such assets and to apply the same to the
purpose for which they were received, and shall not be affected by any notice
to the contrary received by it on or after such date. Nothing contained in
this Section 10.07 shall limit the right of the holders of Senior Indebtedness
to recover payments as contemplated by this Article X.
Section 10.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of subsection (a) of this Section
10.08, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustees or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article X or the obligations hereunder of the
Holders to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place, terms or time of payment of, or renew
or alter, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (2) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (3) release any Person liable in any manner for
the collection or payment of Senior Indebtedness; and (4) exercise or refrain
from exercising any rights against the Company and any other Person.
Section 10.09. Holders Authorize Trustee to Effectuate Subordination of
Bonds.
Each Holder of the Securities by such Holders' acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate, as between the Holders and
the holders of Senior Indebtedness, the subordination provisions contained in
this Article X, and appoints the Trustee such Holders' attorney-in-fact for
such purpose, including, in the event of any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or
marshaling of assets of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, the immediate filing of a claim for the unpaid balance of such
Holder's Securities in the form required in said proceedings and cause said
claim to be approved. If the Trustee does not file a proper claim or proof of
debt in the form required in such proceeding prior to thirty (30) days before
the expiration of the time to file such claim or proof, then any of the
holders of the Senior Indebtedness or their Representative is hereby
authorized, but is not obligated, to file an appropriate claim for and on
behalf of the Holders of said Securities. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior Indebtedness or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorized
the Trustee or the holders of Senior Indebtedness or their Representative to
vote in respect of the claim of any Holder in any such proceeding.
Section 10.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee and any agent of the Company shall be entitled to all the
rights set forth in this Article X with respect to any Senior Indebtedness
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee or any such agent of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article X, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Indebtedness, the distribution will be made and the notice
will be given to their Representative.
Section 10.11. This Article X Not To Prevent Events of Default.
The failure to make a payment on account of Principal of, or interest on,
the Securities by reason of any provision of this Article X will not be
construed as preventing the occurrence of an Event of Default.
Nothing contained in this Article X shall limit the right of the Trustee
or the Holders of the Securities to take any action to accelerate the maturity
of the Securities pursuant to Article VI or to pursue any rights or remedies
hereunder or under applicable law, subject to the rights, if any, under this
Article X of the holders, from time to time, of Senior Indebtedness.
Section 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness, and it undertakes to perform or observe such of its
covenants and obligations as are specifically set forth in this Article X, and
no implied covenants or obligations with respect to the Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not
be liable to any such holders (other than for its willful misconduct or gross
negligence) if it shall pay over or deliver to the Holders or the Company or
any other Person money or assets in compliance with the terms of this
Indenture. Nothing in this Section 10.12 shall affect the obligation of any
Person other than the Trustee to hold such payment for the benefit of, and to
pay such payment over to, the holders of Senior Indebtedness or their
Representative.
Article XI
MISCELLANEOUS
Section 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 11.02. Notices.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, by
telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, or overnight courier addressed as follows:
<TABLE>
<CAPTION>
<S> <C>
if to the Company: IBF VI - Secured Lending Corporation
1733 Connecticut Avenue, NW
Washington, DC 20009
Attention: Simon A. Hershon, President
Fax: (202) 588-5088
with a copy to: Brown & Wood LLP
1666 K Street, N.W.
Washington, D.C. 20006-1208
Attention: H. John Steele
Fax: (202) 533-1399
if to the Trustee: Continental Stock Transfer & Trust Company
2 Broadway
New York, NY 10004
Attention: Corporate Trust Department
Fax: (212) 509-4000
</TABLE>
Each of the Company and the Trustee by written notice to each other may
designate additional or different addresses for notices. Any notice or
communication to the Company or the Trustee shall be deemed to have been given
or made as of the date so delivered, if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if faxed; five (5) calendar
days after mailing, if sent by registered or certified mail, postage prepaid
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee); and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication mailed to a Securityholder, including any
notice delivered in connection with TIA Section 310(b), TIA Section 313(c),
TIA Section 314(a) and TIA Section 315(b) shall be mailed to him by first
class mail or other equivalent means at his address as it appears on the
registration books of the Registrar and shall be sufficiently given to him if
so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee at the
request of the Trustee:
(a) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel (in form and reasonably satisfactory to the
Trustee) 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:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him or her to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of each such person,
such condition or covenant has been complied with; provided, however, that,
with respect to certain matters of fact not involving any legal conclusion, an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials.
Section 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Securityholders. The
Paying Agent or Registrar may make reasonable rules and set reasonable
requirements for its functions.
Section 11.07. Legal Holidays.
If a payment date is a Legal Holiday at such place, payment may be made
at such place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
Section 11.08. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE TO IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN
IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES, AND
IRREVOCABLY ACCEPT FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OR THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries, except to the extent
necessary to interpret the meanings of provisions or defined terms
specifically incorporated by reference. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture, except to the extent
necessary to interpret the meanings of provisions or defined terms
specifically incorporated by reference.
Section 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or Affiliate, as such, of the
Company and each of its Subsidiaries shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
Section 11.11. Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successors and assigns. All agreements of the Trustee in this
Indenture shall bind its successors and assigns.
Section 11.12. Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be and original and all of which taken together shall constitute
one and the same agreement.
Section 11.13. Severability.
In case any provision in this Indenture or in the Securities shall be
held invalid, illegal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby; it being intended that all of the
provisions hereof shall be enforceable to the full extent of the law.
Section 11.14. Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, and are not to be considered a part hereof, and shall in no way modify
or restrict any of the terms or provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
IBF VI - PARTICIPATING
INCOME CORPORATION, as Issuer
By:_________________________________
Name:
Title:
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as Trustee
By:_________________________________
Name:
Title:
