SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
WESTBRIDGE CAPITAL CORP.
_________________________________________________________________
(Exact name of registrant as specified in its charter)
Delaware 73-116500
_________________________________________________________________
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
777 Main Street, Fort Worth, Texas 76102
_________________________________________________________________
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A(c)(1), please
check the following box [X].
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2), please check the following box [ ].
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
------------------- ------------------------------
11% Senior Subordinated New York Stock Exchange
Notes due 2002
Securities to be registered pursuant to Section 12(g) of the Act:
None
____________________________________________________________________
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered
11% Senior Subordinated Notes due 2002
A description of the 11% Senior Subordinated Notes due 2002 (the
"Notes"), is contained in the Company's Prospectus, dated February 21, 1995,
filed by the Registrant with the Commission pursuant to Rule 424(b) of the
Securities Act of 1933, as amended, in connection with Registration
Statement No. 33-88220 relating to the offering of 1,500,000 shares of
Common Stock and $20,000,000 of 11% Senior Subordinated Notes due 2002, and
such description of the Notes is incorporated herein by reference.
Item 2. Exhibits
* 1. Indenture, dated as of February 15, 1995, between
Westbridge Capital Corp. and Liberty Bank and Trust
Company of Oklahoma City, National Association.
2. Restated Certificate of Incorporation of Westbridge
filed with the Secretary of State of Delaware on
July 28, 1994 (incorporated by reference to Exhibit
3.1 to Amendment No 1 to the Company's Registration
Statement No. 33-31830 on Form S-1).
_________________________
* Filed Herewith
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
WESTBRIDGE CAPITAL CORP.
Date: July 18, 1995 By: /s/ James W. Thigpen
------------------------
Name: James W. Thigpen
Title: President and Chief
Operating Officer
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
Exhibit Description Page
A Indenture, dated as of February 15, 6-75
1995 between Westbridge Capital Corp.
and Liberty Bank and Trust Company of
Oklahoma City, National Association.
</TABLE>
<PAGE>
Exhibit A
<PAGE>
WESTBRIDGE CAPITAL CORP.
TO
LIBERTY BANK AND TRUST COMPANY
OF OKLAHOMA CITY, N.A.
TRUSTEE
_______________
INDENTURE
Dated as of February 15, 1995
_______________
$23,000,000
11% Senior Subordinated Notes due 2002
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
RECITALS ......................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION .......... 1
SECTION 101. Definitions ................................... 1
Act .................................................... 2
Affiliate .............................................. 2
Authenticating Agent ................................... 2
Board of Directors ..................................... 2
Board Resolution ....................................... 2
Business Day ........................................... 2
Capitalized Lease Obligation ........................... 2
Commission ............................................. 2
Company ................................................ 3
Company Request or Company Order ....................... 3
Consolidated Capitalization ............................ 3
Consolidated Coverage Ratio ............................ 3
Consolidated EBIT ...................................... 3
Consolidated Interest Expense .......................... 3
Consolidated Net Income ................................ 3
Consolidated Net Worth ................................. 3
Consolidated Subsidiary ................................ 4
Corporate Trust Office ................................. 4
Defaulted Interest ..................................... 4
Event of Default ....................................... 4
Exchange Act ........................................... 4
Funded Debt ............................................ 4
Holder ................................................. 4
Indebtedness ........................................... 4
Indenture .............................................. 5
Interest Payment Date .................................. 5
Maturity ............................................... 5
Note Register and Note Registrar ....................... 5
Officers' Certificate .................................. 5
Opinion of Counsel ..................................... 5
Outstanding ............................................ 5
Paying Agent ........................................... 6
Person ................................................. 6
Predecessor Note ....................................... 6
Redemption Date ........................................ 6
Redemption Price ....................................... 6
Regular Record Date .................................... 6
Responsible Officer .................................... 6
Senior Indebtedness .................................... 7
Series A Preferred Stock ............................... 7
<PAGE>
Significant Subsidiary ................................. 7
Special Record Date .................................... 7
Stated Maturity ........................................ 7
Subsidiary ............................................. 7
Trustee ................................................ 7
Trust Indenture Act .................................... 8
United States .......................................... 8
Vice President ......................................... 8
SECTION 102. Compliance Certificates and Opinions .......... 8
SECTION 103. Form of Documents Delivered to Trustee ........ 9
SECTION 104. Acts of Holders; Record Dates ................. 9
SECTION 105. Notices, etc., to Trustee and Company ......... 10
SECTION 106. Notice to Holders; Waiver ..................... 11
SECTION 107. Conflict with Trust Indenture Act ............. 11
SECTION 108. Effect of Headings and Table of Contents ...... 11
SECTION 109. Successors and Assigns ........................ 11
SECTION 110. Separability Clause ........................... 11
SECTION 111. Benefits of Indenture ......................... 11
SECTION 112. Governing Law ................................. 12
SECTION 113. Legal Holidays ................................ 12
ARTICLE TWO
NOTE FORMS ...................................................... 12
SECTION 201. Forms Generally ............................... 12
SECTION 202. Form of Face of Note .......................... 13
SECTION 203. Form of Reverse of Note ....................... 14
SECTION 204. Form of Trustee's Certificate of Authentication 16
ARTICLE THREE
THE NOTES ........................................................ 16
SECTION 301. Title and Terms ............................... 16
SECTION 302. Denominations ................................. 17
SECTION 303. Execution, Authentication, Delivery and Dating 17
SECTION 304. Temporary Notes ............................... 18
SECTION 305. Registration, Registration of Transfer and
Exchange ...................................... 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes ... 19
SECTION 307. Payment of Interest; Interest Rights Preserved 20
SECTION 308. Persons Deemed Owners ......................... 21
SECTION 309. Cancellation .................................. 21
SECTION 310. Computation of Interest ....................... 21
ARTICLE FOUR
SATISFACTION AND DISCHARGE ....................................... 21
SECTION 401. Satisfaction and Discharge of Indenture ....... 21
SECTION 402. Application of Trust Money .................... 23
SECTION 403. Release of Paying Agent ....................... 23
<PAGE>
ARTICLE FIVE
REMEDIES ......................................................... 23
SECTION 501. Events of Default ............................. 23
SECTION 502. Acceleration of Maturity; Rescission and
Annulment ..................................... 25
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ........................ 26
SECTION 504. Trustee May File Proofs of Claim .............. 26
SECTION 505. Trustee May Enforce Claims Without Possession
of Notes ...................................... 27
SECTION 506. Application of Money Collected ................ 27
SECTION 507. Limitation on Suits ........................... 28
SECTION 508. Unconditional Right of Holders to Receive
Principal and Interest ........................ 28
SECTION 509. Restoration of Rights and Remedies ............ 29
SECTION 510. Rights and Remedies Cumulative ................ 29
SECTION 511. Delay or Omission Not Waiver .................. 29
SECTION 512. Control by Holders ............................ 29
SECTION 513. Waiver of Past Defaults ....................... 29
SECTION 514. Undertaking for Costs ......................... 30
SECTION 515. Waiver of Stay or Extension Laws .............. 30
ARTICLE SIX
THE TRUSTEE ...................................................... 30
SECTION 601. Certain Duties and Responsibilities ........... 30
SECTION 602. Notice of Defaults ............................ 31
SECTION 603. Certain Rights of Trustee ..................... 31
SECTION 604. Not Responsible for Recitals or Issuance of
Notes ......................................... 32
SECTION 605. May Hold Notes ................................ 32
SECTION 606. Money Held in Trust ........................... 32
SECTION 607. Compensation and Reimbursement ................ 32
SECTION 608. Disqualification; Conflicting Interests ....... 33
SECTION 609. Corporate Trustee Required; Eligibility ....... 33
SECTION 610. Resignation and Removal; Appointment of
Successor ..................................... 33
SECTION 611. Acceptance of Appointment by Successor ........ 35
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business ................................... 35
SECTION 613. Preferential Collection of Claims Against
Company ....................................... 35
SECTION 614. Appointment of Authenticating Agent ........... 35
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY ................ 37
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders ..................................................... 37
SECTION 702. Preservation of Information; Communications to
Holders ..................................................... 37
SECTION 703. Reports by Trustee ............................ 39
SECTION 704. Reports by Company ............................ 39
<PAGE>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE ............. 39
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms ....................................................... 39
SECTION 802. Successor Corporation Substituted ............. 40
ARTICLE NINE
SUPPLEMENTAL INDENTURES .......................................... 40
SECTION 901. Supplemental Indentures Without Consent of
Holders ..................................................... 40
SECTION 902. Supplemental Indentures with Consent of Holders 41
SECTION 903. Execution of Supplemental Indentures .......... 42
SECTION 904. Effect of Supplemental Indentures ............. 42
SECTION 905. Conformity with Trust Indenture Act ........... 42
SECTION 906. Reference in Notes to Supplemental Indentures.. 42
SECTION 907. Subordination Unimpaired ...................... 42
ARTICLE TEN
COVENANTS ........................................................ 43
SECTION 1001. Payment of Principal and Interest ............ 43
SECTION 1002. Maintenance of Office or Agency .............. 43
SECTION 1003. Money for Note Payments to Be Held in Trust .. 43
SECTION 1004. Corporate Existence .......................... 45
SECTION 1005. Restrictions on Dividends, Redemptions and Other
Payments ..................................... 45
SECTION 1006. Limitation on Funded Debt .................... 46
SECTION 1007. Payment of Taxes and Other Claims ............ 46
SECTION 1008. Books and Records ............................ 46
SECTION 1009. Liquid Investments ........................... 46
SECTION 1010. Minimum Consolidated Net Worth ............... 47
SECTION 1011. Maintenance of Fixed Charge Coverage ......... 47
SECTION 1012. Statement by Officers as to Default .......... 47
SECTION 1013. Waiver of Certain Covenants .................. 47
SECTION 1014. Notes Senior to Convertible Indebtedness ..... 48
ARTICLE ELEVEN
REDEMPTION OF NOTES .............................................. 48
SECTION 1101. Right of Redemption .......................... 48
SECTION 1102. Applicability of Article ..................... 48
SECTION 1103. Election to Redeem; Notice to Trustee ........ 48
SECTION 1104. Selection by Trustee of Notes to Be Redeemed . 48
SECTION 1105. Notice of Redemption ......................... 49
SECTION 1106. Deposit of Redemption Price .................. 49
SECTION 1107. Notes Payable on Redemption Date ............. 49
SECTION 1108. Notes Redeemed in Part ....................... 50
<PAGE>
ARTICLE TWELVE
SUBORDINATION OF NOTES ........................................... 50
SECTION 1201. Agreement to Subordinate...................... 50
SECTION 1202. No Payment on Notes in Event of Default on Senior
Indebtedness ................................. 50
SECTION 1203. Distribution on Dissolution, Liquidation and
Reorganization ............................... 51
SECTION 1204. Payment to Holders of Senior Indebtedness .... 52
SECTION 1205. Subrogation .................................. 53
SECTION 1206. Payment on Notes Permitted ................... 53
SECTION 1207. Authorization of Holders to Trustee to Effect
Subordination ................................ 54
SECTION 1208. Trustee as Holder of Senior Indebtedness ..... 54
SECTION 1209. Notices to Trustee ........................... 54
SECTION 1210. No Fiduciary Duty by Trustee to Holders of Senior
Indebtedness ................................. 55
SECTION 1211. Paying Agent Treated as Trustee .............. 55
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDER IN CERTAIN CIRCUMSTANCES ........... 55
SECTION 1301. Repayment Option upon Death of Holder ........ 55
SECTION 1302. Repayment of Notes ........................... 57
SECTION 1303. Notes Repaid in Part ......................... 57
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE ............................... 58
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance ................................... 58
SECTION 1402. Defeasance and Discharge ..................... 58
SECTION 1403. Covenant Defeasance .......................... 58
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance ................................... 59
</TABLE>
<TABLE>
<CAPTION>
Westbridge Capital Corp. Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of February 15, 1995
<S> <C>
Trust Indenture
Act Section Indenture Section
- ---------------- -----------------
310(a)(1) ............................................ 609
(a)(2) ............................................ 609
(a)(3)............................................. Not Applicable
(a)(4) ............................................ Not Applicable
(a)(5) ............................................ Not Applicable
(b) ............................................... 608
610
(c) ............................................... Not Applicable
311(a) ............................................... 613
(b) ............................................... 613
(c) ............................................... Not Applicable
312(a) ............................................... 701
702(a)
(b) ............................................... (b)
(c) ............................................... 702(c)
313(a) ............................................... 703(a)
(b) ............................................... 703(a)
(c) ............................................... 703(a)
(d) ............................................... 703(b)
314(a) ............................................... 704
1012
(b) ............................................... Not Applicable
(c)(1) ............................................ 102
(c)(2) ............................................ 102
(c)(3) ............................................ 102
(d) ............................................... Not Applicable
(e) ............................................... 102
(f) ............................................... Not Applicable
315(a) ............................................... 601
(b) ............................................... 602
(c) ............................................... 601
(d) ............................................... 601
(e) ............................................... 514
316(a) ............................................... 101
<PAGE>
(a)(1)(A) ......................................... 512
(a)(1)(B) ......................................... 513
(a)(2) ............................................ Not Applicable
(b) ............................................... 508
(c) ............................................... 104(c)
317(a)(1) ............................................ 503
(a)(2) ........................................... 504
(b) .............................................. 1003
318(a) ............................................... 107
_______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
INDENTURE, dated as of February 15, 1995, between Westbridge Capital
Corp., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal executive
office at 777 Main Street, Fort Worth, Texas 76102, and Liberty Bank and
Trust Company of Oklahoma City, N.A., a national banking association duly
organized and existing under the laws of the United States of America, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of up to
$23,000,000 aggregate principal amount of its 11% Senior Subordinated Notes
due 2002 (herein called the "Notes") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company,
the valid obligations of the Company, and to make this Indenture a valid
agreement of the Company, in accordance with their and its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
<PAGE>
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thurs- day and
Friday which is not a day on which banking institutions in New York or Texas
are authorized or obligated by law or executive order to close.
"Capitalized Lease Obligation" means, as to any person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real or personal property which
obligations are required to be classified and accounted for as capital lease
obligations on a balance sheet of such Person under generally accepted
accounting principles and, for purposes of this Indenture, the amount of
such obligations at any date shall be the capitalized amount thereof at such
date, determined in accordance with generally accepted accounting
principles.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company and delivered to the Trustee.
"Consolidated Capitalization" means Funded Debt plus Consolidated Net
Worth.
"Consolidated Coverage Ratio" is defined as the ratio of (a)
Consolidated EBIT during such period to (b)(i) Consolidated Interest Expense
during such period plus (ii) dividends on any capital stock paid in cash
during such period.
"Consolidated EBIT" is defined as the sum of (a) Consolidated Net
Income, plus (b) all extraordinary losses (and minus extraordinary gains),
plus (c) income taxes, plus (d) Consolidated Interest Expense.
"Consolidated Interest Expense" is defined as the sum of (i) interest
expense for borrowed money, plus (ii) imputed interest expense on
capitalized leases, plus (iii) one-third of expenses paid or accrued in
respect of operating leases.
"Consolidated Net Income" means the amount of net income (loss) of
the Company and its Subsidiaries determined in accordance with generally
accepted accounting principles; provided, however, that there shall not be
included in Consolidated Net Income (1) any net income (loss) of a
Subsidiary for any period during which it was not a Consolidated Subsidiary
or (2) any net income (loss) of businesses, properties or assets acquired or
disposed of (by way of merger, consolidation, purchase, sale or otherwise)
by the Company or any Subsidiary for any period prior to the acquisition
thereof or subsequent to the disposition thereof.
"Consolidated Net Worth" means the excess, as determined in
accordance with generally accepted accounting principles, after making
appropriate deductions for any minority interest in the net worth of
Consolidated Subsidiaries, of (1) the assets of the Company and its
Consolidated Subsidiaries over (2) the liabilities of the Company and its
Consolidated Subsidiaries; provided, however, that any write-up in the book
value of any assets owned subsequent to the date of this Indenture (other
than a write-up required for assets acquired in connection with the purchase
of a Person or business and taken at the time of such acquisition) shall not
be taken into account; provided further, that any unrealized gains or losses
that are incurred as a result of the application of FAS 115 to the fixed
income securities held by the Company or a subsidiary and classified as
either "available for sale" or "trading" securities shall not be taken into
account.
<PAGE>
"Consolidated Subsidiary" means a Subsidiary of the Company the
financial statements of which are included in the financial statements of
the Company and its Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee in
at which at any particular time its corporate trust business shall be
administered.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means any of the following obligations of the Company
or any Subsidiary which by its terms matures at or is extendable or
renewable at the sole option of the obligor without requiring the consent of
the obligee to a date more than twelve months after the date of the creation
or incurrence of such obligation: (1) any obligations, contingent or
otherwise, for borrowed money or for the deferred purchase price of property
or services (including, without limitation, any interest accruing subsequent
to any Event of Default), (2) all obligations (including the Notes)
evidenced by bonds, notes, debentures or other similar instruments, (3) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property),
except any such obligation that constitutes a trade payable and an accrued
liability arising in the ordinary course of business, if and to the extent
any of the foregoing indebtedness would appear as a liability upon a balance
sheet prepared in accordance with generally accepted accounting principles,
(4) all Capitalized Lease Obligations, (5) all indebtedness of the type
referred to in Clause (1), (2), (3) or (4) above secured by (or for which
the holder of such indebtedness has an existing right, contingent or
otherwise, to be secured by) any lien upon or security interest in property
of the Company or any Subsidiary (including, without limitation, accounts
and contract rights), even though the Company or any Subsidiary has not
assumed or become liable for the payment of such indebtedness, and (6) any
guarantee of any obligation of the types referred to in any of the foregoing
Clauses (1) through (5), regardless of whether such obligation would appear
on a balance sheet.
"Holder" means a Person in whose name a Note is registered in the
Note Register.
"Indebtedness" means the principal of, premium, if any, and interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company, whether or not
such claim for post-petition interest is allowed in such proceeding) on the
following, whether outstanding at the date of the Indenture or thereafter
incurred or created: (i) indebtedness of the Company for money borrowed
(including purchase-money obligations) evidenced by notes or other written
obligations, (ii) indebtedness of the Company evidenced by notes (other than
the Notes), debentures, bonds or other securities issued under the
provisions of an indenture or similar
<PAGE>
instrument, (iii) obligations of the Company as lessee under capitalized
leases and leases of property made as part of any sale and leaseback
transactions, (iv) indebtedness of others of any of the kinds described in
the preceding clauses (i) through (iii) assumed or guaranteed by the Company
and (v) renewals, extensions and refundings of, and indebtedness and
obligations of a successor corporation issued in exchange for or in
replacement of, indebtedness or obligations of the kinds described in the
preceding clauses (i) through (iv).
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Notes.
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee and, unless
otherwise provided in this Indenture, containing the statements provided for
in Section 102.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company and who shall be acceptable to the Trustee,
containing the statements provided for in Section 102.
"Outstanding", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Notes; provided that, if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
<PAGE>
(iii) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned
by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to
be so owned shall be so disregarded. Notes so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect
to such Notes and that the pledgee is not the Company or any other obligor
upon the Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Notes on behalf of the Company.
"Person" means any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a corporation, a
partnership, a trust, or other entity.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Note.
"Redemption Date", when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified in Section 202 as the "Regular Record
Date."
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
<PAGE>
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Company, whether or not
such claim for post- petition interest is allowed in such proceeding) on the
following, whether outstanding at the date hereof or thereafter incurred or
created: (a) indebtedness of the Company for money borrowed (including
purchase-money obligations) evidenced by notes or other written obligations,
(b) indebtedness of the Company evidenced by notes (other than the Notes),
debentures, bonds or other securities issued under the provisions of an
indenture or similar instrument, (c) obligations of the Company as lessee
under capitalized leases and leases of property made as part of any sale and
leaseback transactions, (d) indebtedness of others of any of the kinds
described in the preceding clauses (a) through (c) assumed or guaranteed by
the Company and (e) renewals, extensions and refundings of, and indebtedness
and obligations of a successor corporation issued in exchange for or in
replacement of, indebtedness or obligations of the kinds described in the
preceding clauses (a) through (d), unless in the case of any particular
indebtedness, obligation, renewal, extension or refunding the instrument
creating or evidencing the same or the assumption or guarantee thereof
expressly provides that such indebtedness, obligation, renewal, extension or
refunding (i) is not superior in right of payment to the Notes or (ii) is
subordinated in right of payment to all other Indebtedness of the Company;
provided, however, that in any event Senior Indebtedness shall not include
the 11.70% Senior Subordinated Debentures due 1996 issued by the Company or
the Convertible Subordinated Debentures due April 12, 2004 issuable upon
exchange of the Series A Preferred Stock, the latter of which will be, if
issued, subordinated to the Notes.
"Series A Preferred Stock" shall mean the Company's Series A
Cumulative Convertible Redeemable Exchangeable Preferred Stock, par value
$.10 per share.
"Significant Subsidiary" means each Subsidiary that would constitute
a "Significant Subsidiary" within the meaning of Rule 1-02 of Regulation S-X
of the Commission.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as
the fixed date on which the principal of such Note or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the
<PAGE>
election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, or the date any supplemental indenture is executed, "Trust
Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"United States", except as otherwise provided herein, means the
United States of America (including the states thereof and the District of
Columbia), its territories and possessions and other areas subject to its
jurisdiction.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the
Trust Indenture Act and under this Indenture.
Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
opinion of counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth
in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
Officers' Certificate provided pursuant to Section 1012) shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him
to expres an
<PAGE>
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered in an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
<PAGE>
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgements of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any
action, authorized or permitted to be given or taken by Holders. If not set
by the Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date, only the Holders
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Notes shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder
of the same Note and the Holder of every Note issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
<PAGE>
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act,
such required provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of
<PAGE>
Senior Indebtedness and the Holders of Notes, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes)
payment of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as
if made on the Interest Payment Date, Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Notes and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution of the Notes.
The definitive Notes shall be printed, lithographed or en- graved or
produced by any combination of these methods on steel engraved borders or
may be produced in any other manner, all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
<PAGE>
SECTION 202. Form of Face of Note.
WESTBRIDGE CAPITAL CORP.
11% Senior Subordinated Note due 2002
NO..... $.........
Westbridge Capital Corp., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of ______________
Dollars on March 1, 2002, and to pay interest thereon from February 28, 1995
or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, on the 1st day of each month commencing April 1,
1995 (each an "Interest Payment Date"), at the rate of 11% per annum, until
the principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close
of business on the tenth day, whether or not a Business Day, of the month
preceding the respective Interest Payment Date (the "Regular Record Date").
Any such interest not so punctually paid or duly provided for will forth-
with cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Note will be made at the
office or agency of the Company maintained for that purpose in New York, New
York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest on
any Interest Payment Date other than at Maturity may be made by check mailed
to the address of the Person entitled thereto as such address shall appear
in the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
WESTBRIDGE CAPITAL CORP.
Dated: BY ________________________
Attest:
________________________
SECTION 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of Notes of the Company
designated as its 11% Senior Subordinated Notes due 2002 (herein called the
"Notes"), limited in aggregate principal amount to $23,000,000, issued and
to be issued under an Indenture, dated as of February 15, 1995 (herein
called the "Indenture"), between the Company and Liberty Bank and Trust
Company of Oklahoma City, N.A., as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
Indebtedness and the Holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered.
The Notes are subject to redemption at any time on or after March 1,
1998, as a whole or in part, at the election of the Company, upon not less
than 30 nor more than 45 days' notice, at 100% of the principal amount
thereof, without premium, together in the case of any such redemption with
accrued interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Notes, or one or more Predecessor Notes, of record at
the close of business on the applicable Regular Record Dates referred to on
the face hereof, all as provided in the Indenture.
The Notes do not have the benefit of any sinking fund obligation.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of the Notes and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
In the event of redemption by the Company of this Note in part only,
a new Note or Notes for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
<PAGE>
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Note is issued subject to such provisions and each Holder of this Note, by
accepting the same, agrees to and shall be bound by such provisions, and
authorizes the Trustee in such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and appoints the Trustee as such Holder's attorney-in-fact for
such purpose.
If an Event of Default shall occur and be continuing, the principal
of all the Notes may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Notes under the Indenture
at any time by the Company and the Trustee with the consent of the Holders
of a majority in aggregate principal amount of the Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Notes at the
time Outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the
designated office or agency of the Company in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Notes are issuable only in registered form without cou- pons in
denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Notes
are exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering
the same.
<PAGE>
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Notes referred to in the within-mentioned
Indenture.
Liberty Bank and Trust Company of Oklahoma City,
National Association
as Trustee
By _______________________________
Authorized Officer
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is limited to $23,000,000, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306,
906, 1108 or 1303.
The Notes shall be known and designated as the "11% Senior
Subordinated Notes due 2002" of the Company. Their Stated Maturity shall be
March 1, 2002, and they shall bear interest at the rate of 11% per annum
from February __, 1995 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be,
payable on the 1st day of each month, commencing April 1, 1995, until the
principal thereof is paid or made available for payment.
The principal of and interest on the Notes shall be payable at the
office or agency of the Company in New York, New York, maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose; provided, however, that
<PAGE>
at the option of the Company, payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register.
The Notes shall be redeemable at the option of the Company as
provided in Article Eleven.
The Notes shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Twelve.
The Company may be required to repurchase Notes as provided in
Article Thirteen.
The Notes shall not have the benefit of any sinking fund obligations.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiples of $1,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen of the Board, its President, or one
of its Vice Presidents, under its corporate seal reproduced thereon attested
by its Treasurer or one of its Assistant Treasurers, or its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Notes as in this
Indenture provided and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder.
<PAGE>
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as evidenced by their execution
of such Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at any office or agency of the
Company designated pursuant to Section 1002, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Notes the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes. The
Trustee is hereby appointed "Note Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at an office
or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denominations, of a like aggregate
principal amount.
Subject to Section 302, at the option of the Holder, Notes may be
exchanged for other Notes of any authorized denominations, of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver,
the Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or ex- change of
Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
<PAGE>
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient
to cover any tax or other government charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other
than exchanges pursuant to Section 304, 906, 1108 or 1303 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Note during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Notes
selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) such security or indemnity as may be required by them to save each
of them and any agent of either of them harmless, then, in the absence of
notice of the Company or the Trustee that such Note has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Note, a new Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by
<PAGE>
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a "Special Record Date"
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date
of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Note Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if,
<PAGE>
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Note is registered as the owner of such Note
for the purpose of receiving payment of principal of and (subject to Section
307) interest on such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. No Notes shall be authenticated in lieu
of or in exchange for any Notes cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Notes held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
<PAGE>
(1) either
(A) all Notes theretofore authenticated and deliv- ered
(other than (i) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Notes for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and the
obligations of the Trustee to any Authenticating Agent under Section 614
shall survive, and if money shall have been deposited with the Trustee
pursuant to Subclause B of Clause (1) of this Section, the obligations of
the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
<PAGE>
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest
for whose payment such money has been deposited with the Trustee.
SECTION 403. Release of Paying Agent.
In connection with the satisfaction and discharge of this Indenture
all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reasons for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Note
when it becomes due and payable, and continuance of such default for a
period of ten (10) Business Days; or
(2) default in the payment of the principal of any Note
at its Maturity; or
(3) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 30 days after there has been given, by first class
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Notes a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
<PAGE>
(4) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or any of its
Subsidiaries or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any of its Subsidiaries
whether such indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness in an aggregate amount
exceeding $5,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable or such
obligations being accelerated, without such acceleration having been
rescinded or annulled within a period of 30 days after there shall have been
given, by first class mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Notes a written notice specifying such default and requiring the
Company to cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any of its Significant
Subsidiaries a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any of its Significant Subsidiaries under
Federal bankruptcy law, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any of its Significant Subsidiaries or of
any substantial part of the property of the Company or any of its
Significant Subsidiaries, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 30 consecutive days; or
(6) the commencement by the Company or any of its
Significant Subsidiaries, of a voluntary case under Federal bankruptcy law,
as now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency, or other similar law, or the consent by the Company
or any of its Significant Subsidiaries to the institution of bankruptcy or
insolvency proceedings against the Company or any of its Significant
Subsidiaries, or the filing by the Company or any of its Significant
Subsidiaries of a petition or answer or consent seeking reorganization or
relief under Federal bankruptcy law or any other applicable Federal or State
law, or the consent by the Company or any of its Significant Subsidiaries to
the filing of such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or any of
its Significant Subsidiaries or of any substantial part of the property of
the Company or any of its Significant Subsidiaries, or the making by the
Company or any of its Significant Subsidiaries of an assignment for the
benefit of creditors, or
<PAGE>
the admission by the Company or any of its Significant Subsidiaries in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or any of its Significant
Subsidiaries in furtherance of any such action; or
(7) the entry of a judgment or order by a court having
jurisdiction in the premises adjudging the Company or any of its
Subsidiaries liable for the payment of money of at least $5,000,000 and such
judgment or order is not vacated, discharged, stayed or bonded pending
appeal within 30 days thereof.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Notes may declare the principal of all the Notes,
and the interest accrued thereon, to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal shall become immediately due
and payable.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the Outstanding Notes, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all
Notes,
(B) the principal of any Notes which have become
due otherwise than by such declaration of acceleration and interest thereon
at the rate borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the rate borne by
the Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of
the principal of Notes which have become due solely by such declaration of
acceleration, have been cured and waived as provided in Section 513.
<PAGE>
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and such
default continues for a period of ten (10) Business Days, or
(2) default is made in the payment of the principal of
any Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Notes, the whole amount then due and payable on such
Notes for principal and interest, with interest upon the overdue principal
and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate borne by the
Notes; and, in addition thereto, 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.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
<PAGE>
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Twelve, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Notes
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of all amounts due the holders of Senior
Indebtedness to the extent required by Article Twelve; and
<PAGE>
THIRD: To the payment of the amounts then due and unpaid for
principal of and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Notes for principal and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 307) interest on
such Note on the respective Stated Maturities expressed in such Note (or, in
the case of redemption, on the Redemption Date), and to institute suit for
the enforcement of any such payment and such rights shall not be impaired
without the consent of such Holder.
<PAGE>
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article 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.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Notes shall have the right to 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 the Trustee, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any
past default hereunder and its consequences, except a default
<PAGE>
(1) in the payment of the principal of or interest on any Note,
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. 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, suffered
or omitted by it as Trustee, a court may require any party litigant in such
suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided that neither this Section nor
the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by
the Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by this Indenture and the Trust Indenture Act. Notwithstanding the
foregoing, 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. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
<PAGE>
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; provided,
however,that in the case of any default of the character specified in
Section 501(3), no such notice to Holders shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
<PAGE>
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 to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in accordance with the
direction of Holders of Outstanding Notes as provided in Section 512 hereof;
and
(i) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
SECTION 604. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Notes. The Trustee shall not be accountable for
the use or application by the Company of Notes or the proceeds thereof.
SECTION 605. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Note
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by
<PAGE>
any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Notes upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of or interest on Notes.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest, within
the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this
Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $100,000,000 and subject
to supervision or examination by Federal or State authority. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
<PAGE>
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Notes, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Note for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage prepaid,
to all Holders as their names and addresses
<PAGE>
appear in the Note Register. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee; but,
on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its lien, if any, provided for in Section
607. Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any Notes
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes
so authenticated with the same effect as if such successor Trustee had
itself authenticated such Notes.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act
on behalf of the
<PAGE>
Trustee to authenticate Notes issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and Notes
so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be accept- able to the Company
and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
Note Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent herein. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
<PAGE>
If an appointment is made pursuant to this Section, the Notes may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Notes described in the within-mentioned Indenture.
Liberty Bank and Trust Company of Oklahoma
City, National Association As Trustee
By .....................................
As Authenticating Agent
By .....................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) monthly, not more than 5 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Note Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
<PAGE>
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Note for a period of at least six
months preceding the date of such application, and such application states
that the applicants desire to communicate with other Holders with respect to
their rights under this Indenture or under the Notes and is accompanied by a
copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of
the reasonable expenses of mailing, unless within five days after such
tender the Trustee shall mail to such appli- cants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interest of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of
an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under Section 702(b).
<PAGE>
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to all Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant
to Section 313 of the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Notes are listed, with the Commission and with the Company.
The Company will notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Note Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
<PAGE>
The Company shall not consolidate with or merge into any other
corporation or convey or transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and interest on all the Notes and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter, except in the case of a lease,
the predecessor corporation shall be re- lieved of all obligations and
covenants under this Indenture and the Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
<PAGE>
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Notes; or
(2) 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
(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action shall not adversely affect the
interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes, by an Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount thereof
or the rate of interest thereon, or change the place of payment where, or
the coin or currency in which, any Note or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of an offer to
purchase Notes by the Company pursuant to Article Thirteen which has been
made, on or after the applicable Repayment Date), or modify the provisions
of this Indenture with respect to the subordination of the Notes in a manner
adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, or Section
513, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby, or
<PAGE>
(4) following the making of an offer to purchase Notes by the
Company pursuant to Article Thirteen, modify the provisions of this
Indenture with respect to the Company's obligation to purchase such Notes in
a manner adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or im- munities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Notes so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Notes.
SECTION 907. Subordination Unimpaired.
No supplemental indenture entered into under this Article shall
directly or indirectly modify the provisions of Article Twelve or the
definition of Senior Indebtedness in any manner which might alter or impair
the subordination of the Notes with respect to
<PAGE>
Senior Indebtedness then outstanding unless each holder of such Senior
Indebtedness has consented thereto in writing.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in New York, New York, an office or agency
where Notes may be presented or surrendered for pay- ment, where Notes may
be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside New York, New York) where the Notes may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in New York, New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of or interest on any of
the Notes, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
on or before each due date of the principal of or interest on any Notes,
deposit with a Paying Agent a sum suffi- cient to pay the principal or
interest so becoming due, such sum to be
<PAGE>
held in trust for the benefit of the Persons entitled to such principal or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of or interest on Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided:
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of principal
or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or
interest on any Note and remaining unclaimed for six years after such
principal or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with re- spect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
<PAGE>
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and its Subsidiaries, and shall comply with all statutes, rules,
regulations and orders of and restrictions imposed by governmental and
administrative authorities and agencies applicable to the Company and its
Subsidiaries; provided, however, that the foregoing shall not obligate the
Company to preserve any such right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries and that the
loss thereof is not disadvantageous in any material respect to any Holder.
SECTION 1005. Restrictions on Dividends, Redemptions and Other Payments.
The Company shall not declare or pay any dividends on, or purchase,
redeem or otherwise acquire for value, any of its capital stock now or
hereafter outstanding, or return any capital to holders of its capital stock
as such, or make any distribution of assets to holders of its capital stock
as such, except that the Company may (1) declare and pay dividends on, and
repurchase and exchange the Series A Preferred Stock in accordance with the
terms thereof, (2) declare and pay dividends in capital stock of the
Company, and (3) declare and pay dividends, purchase, redeem or otherwise
acquire for value its capital stock or make distributions in cash or
property (other than capital stock of the Company), provided that no such
dividend, purchase or distribution pursuant to this item (3) shall occur if
the amount of such dividend, purchase or distribution, together with the
amount of all previous such dividends, purchases and distributions by the
Company subsequent to March 15, 1995, would exceed in the aggregate the sum
of: (a) $3 million plus (b) 50% of the Company's aggregate Consolidated Net
Income (excluding unrealized gains and losses on securities marked to market
to the extent they were included in such Consolidated Net Income) for each
fiscal year commencing subsequent to December 31, 1994 (with reduction for a
loss in any fiscal year), plus (c) 100% of the net proceeds received by the
Company on account of any capital stock issued by the Company (other than to
a Subsidiary) subsequent to January 1, 1995 (including the aggregate net
cash proceeds received by the Company on disposition of any property
received by the Company from such sales), plus (d) 100% of the aggregate net
proceeds received by the Company on account of any Indebtedness convertible
into capital stock of the Company issued by the Company (other than to a
Subsidiary) subsequent to January 1, 1995 (including the aggregate net cash
proceeds received by the Company on disposition of any property received by
the Company from such sales), to the extent such Indebtedness has been
converted into such capital stock. For purposes of the preceding sentence,
the amount of any dividend payable in property other than cash, or property
other than cash received upon the issuance or sale of capital stock or
Indebtedness, shall be deemed to be the fair market value of such property
as determined by the Board of Directors of the Company.
<PAGE>
SECTION 1006. Limitation on Funded Debt.
The Company shall not, and shall not permit any Subsidiary to,
create, incur, assume, guarantee or be liable with respect to any Funded
Debt if, immediately after giving effect to any such creation, incurrence,
assumption or guarantee (including the retirement of any existing
indebtedness from the proceeds of such additional Funded Debt), the
aggregate amount of Funded Debt outstanding would exceed 60% of Consolidated
Capitalization.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and
(2) all lawful claims for labor, material and supplies which, if unpaid,
might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings and for which disputed amounts
adequate reserves (in the good faith judgment of the Board of Directors of
the Company) have been established.
SECTION 1008. Books and Records.
The Company shall, and shall cause each Subsidiary to, at all times
keep proper books of record and account in which proper entries shall be
made in accordance with generally accepted accounting principles and, to the
extent applicable, regulatory accounting principles.
SECTION 1009. Liquid Investments.
The Company covenants and agrees that it will maintain, at all times,
investments, free and clear of all liens, pledges and encumbrances, with a
book value of not less than an amount equal to one-half the product of (i)
the per annum interest rate borne by the Notes and (ii) the aggregate
principal amount of Notes Outstanding, and where applicable a stated
maturity not in excess of 365 days, in (i) direct obligations of, or
obligations guaranteed by, the United States government, its agencies, the
government of one of the states of the United States or the District of
Columbia or any municipality or other governmental entity thereof; (ii)
certificates of deposit, eurodollar deposits, repurchase agreements or
banker's acceptances issued by, or other deposit account of, any bank
organized under the laws of the United States, any state thereof or the
District of Columbia having combined capital and surplus aggregating at
least $100,000,000; (iii) commercial paper or other direct obligations of,
or obligations guaranteed by, a corporation organized under the laws of one
of the states of the United States or the District of Columbia and rated in
the highest category by at least one nationally recognized rating agency; or
(iv) shares of any money market fund having total assets in excess of
$500,000,000; provided, however, that if the book value of such investments
is
<PAGE>
less than an amount equal to one-half the product of (i) the per annum
interest rate borne by the Notes and (ii) the aggregate principal amount of
Notes Outstanding, solely as result of the Company's use of such investments
for the payment of any interest on any Note, the book value of such
investments may continue to be less than such amount for a period of 365
consecutive days if all remaining investments maintained by the Company
pursuant to this Section 1009 are used solely for the payment of any
interest on any Note.
SECTION 1010. Minimum Consolidated Net Worth.
The Company will maintain Consolidated Net Worth at the end of each
quarterly fiscal period of the Company at an amount not less than
$35,000,000.
SECTION 1011. Maintenance of Fixed Charge Coverage.
The Company will maintain a Consolidated Coverage Ratio for its last
four consecutive completed fiscal quarters taken as a whole of at least
1.3:1.
SECTION 1012. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1013. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 through 1006 and
1009 through 1011 with respect to the Notes if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Notes, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with
such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 1014. Notes Senior to Convertible Indebtedness.
The Notes shall constitute "Senior Indebtedness" for purposes of and
as that term is defined in the form of indenture relating to the Convertible
Subordinated Debentures due April 12, 2004 issuable upon exchange of the
Series A Preferred Stock.
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
The Notes shall not be redeemable at the option of the Company prior
to March 1, 1998. The Company may, at its option, redeem all or any part of
the Notes at any time on or after March 1, 1998, at the Redemption Price of
100% of the principal amount thereof, without premium, together with
interest accrued to the Redemption Date. Redemption of Notes at the option
of the Company as permitted hereby shall be made in accordance with the
terms of such Notes and this Article.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company shall be made in
accordance with this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at
the election of the Company of less than all the Notes, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Notes to be redeemed.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular Notes
to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of Notes of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Note Registrar
in writing of the Notes selected for redemption and, in the case of any
Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate,
in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Note which has been or is to be
redeemed.
<PAGE>
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 45 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at his address
appearing in the Note Register.
In order to facilitate the redemption of Outstanding Notes, the
Board of Directors may fix a record date for the determination of
Outstanding Notes to be redeemed; not more than forty-five (45) days nor
less than thirty (30) days prior to the applicable Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note to be re- deemed and that
interest thereon will cease to accrue on and after said date, and
(5) the place or places where such Notes are to be sur-
rendered for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Notes shall cease to bear interest. Upon surrender of any
such Note for redemption in accordance with said
<PAGE>
notice, such Note shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Notes, or one or
more Predecessor Notes, registered as such at the close of business on the
relevant record dates according to their terms and the provisions of Section
307.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from
the Redemption Date at the rate borne by the Note.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Note so
surrendered.
ARTICLE TWELVE
SUBORDINATION OF NOTES
SECTION 1201. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Notes, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Notes and the payment of the principal thereof and interest
thereon shall be subordinate and subject in right of payment, to the extent
and in the manner hereinafter set forth, to the prior payment in full of all
Senior Indebtedness.
SECTION 1202. No Payment on Notes in Event of Default on Senior
Indebtedness.
The Company shall not make any payment on account of the principal of
or interest on the Notes if, at the time thereof or immediately after giving
effect thereto, there exists (and has not been waived) any default in the
payment of principal of, premium, if any, or interest on any Senior
Indebtedness or any event of default with respect to any Senior Indebtedness
as defined therein (after giving effect to any grace period provided for
therein) or in any agreement pursuant to which any Senior Indebtedness is
issued and the default is the subject of a judicial proceeding or the
Company receives notice of the default from the Trustee or any holder of
Senior Indebtedness or any trustee therefor; provided, however, that in the
event the Notes have
<PAGE>
been declared due and payable pursuant to Section 502, the provisions of
the next succeeding paragraph of this Section 1202 shall be applicable.
In the event that any Event of Default as defined in Section 501
shall occur (under such circumstances that the provisions of Section 1203
are not applicable) and as a result the Notes then outstanding are declared
due and payable pursuant to Section 502, and such declaration shall not have
been rescinded or annulled, the Company shall promptly cause notice thereof
to be mailed to all holders of Senior Indebtedness whose names and addresses
are known to the Company (and not later than said mailing date shall also
cause notice thereof to be published at least once in a newspaper printed in
the English language, customarily published at least once on each full
business day, and of general circulation in New York, New York), and the
Company shall not make any payment on account of the principal of or
interest on any Notes, unless at least 120 days shall have elapsed after
said declaration and unless all principal of, premium, if any, and interest
on Senior Indebtedness due at the time of such payment (whether by
acceleration of the maturity thereof or otherwise) shall first be paid in
full.
The Company shall give prompt written notice to the Trustee of the
existence of any of the conditions described in this Section 1202.
SECTION 1203. Distribution on Dissolution, Liquidation and Reorganization.
In the event of any payment or distribution of assets or securities
of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding up or total or
partial liquidation or reorganization of the Company, whether voluntary or
involuntary and whether in bankruptcy, insolvency or receivership
proceedings, or upon an assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Company, or upon other
proceedings:
(a) all principal of, premium, if any, and interest due on all
Senior Indebtedness shall first be paid in full, or due provision made for
such payment, in accordance with the terms of such Senior Indebtedness,
before any payment is made on account of the principal of or interest on the
indebtedness evidenced by the Notes, or before the Holders of the Notes
shall be entitled to retain any assets so paid or distributed in respect
thereof; and
(b) any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities
(other than securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, which are in any such case subordinated to
Senior Indebtedness to the same extent as the Notes), to which the Holders
of the Notes or the Trustee for their benefit would be entitled except for
the provisions of this Section 1203, shall be paid or delivered by the
Company or any receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution directly to the holders
of Senior Indebtedness (pro rata to each such holder on the basis of the
respective amount of Senior Indebtedness held by such holder) or their
representative
<PAGE>
or representatives or the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary
to pay all Senior Indebtedness in full in accordance with the terms of such
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the Holders of the Notes.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company within
the meaning of this Section 1203.
SECTION 1204. Payment to Holders of Senior Indebtedness.
Subject to the provisions of Section 1206, in the event that,
notwithstanding the provisions of Section 1202 or Section 1203, any payment
or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities, shall be received by the
Trustee or the Holders of the Notes (i) from the Company in violation of
such provisions, or (ii) from any other Person under such circumstances that
such payment would, if made directly by the Company, be in violation of such
provisions, such payment or distribution shall immediately be paid over by
the Trustee or such Holders to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture under which any instrument evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts then due on account of the principal of, premium, if any, and
interest on such Senior Indebtedness (after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness), to the
extent necessary to pay in full all such amounts then due.
Upon any payment or distribution of assets or securities of the
Company referred to in Sections 1202 and 1203, the Trustee and the Holders
of the Notes shall be entitled to rely upon any order or decree of a court
of competent jurisdiction, or upon any certificate of any liquidating
trustee or agent or other Person making any payment or distribution to the
Trustee or to the Holders of the Notes, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders
of the Senior Indebtedness, the amount thereof for payment thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve. In the event that the Trustee
determines, in good faith, that further evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution referred to in Sections 1202 and 1203, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under Sections 1202 and 1203, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
<PAGE>
SECTION 1205. Subrogation.
Subject to the payment in full of all amounts then due (whether by
acceleration of the maturity thereof or otherwise) on account of the
principal of, premium, if any, and interest on all Senior Indebtedness at
the time outstanding, the Holders of the Notes shall be subrogated to the
rights of each holder of Senior Indebtedness (to the extent of the payments
or distributions made to such holder pursuant to the provisions of Sections
1202, 1203, 1204) to receive payments or distributions of assets or
securities of the Company applicable to the Senior Indebtedness until the
Notes shall be paid in full, and each holder of Senior Indebtedness by the
act of accepting such payments or distributions pursuant to the provisions
of Sections 1202, 1203 and 1204 shall be deemed to have agreed to the
subrogation aforesaid. No payments or distributions of assets or securities
of the Company applicable to Senior Indebtedness which the Holders of the
Notes receive by reason of their being subrogated to the rights of the
holders of such Senior Indebtedness pursuant to the provisions of Sections
1202, 1203 and 1204 shall, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the Holders of the Notes, be deemed
to be a payment by the Company on account of the Notes, it being understood
that the provisions of this Article Twelve are intended solely for the
purposes of defining the relative rights of the Holders of the Notes, on the
one hand, and the holders of the Senior Indebtedness, on the other hand, and
nothing contained in this Article Twelve or elsewhere in this Indenture, or
in the Notes, is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of
the Notes, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Notes the principal of and
interest on the Notes, 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 of the Notes and creditors of the Company other than
the holders of Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Notes from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Twelve of the holders of
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
SECTION 1206. Payment on Notes Permitted.
Nothing contained in this Article Twelve or elsewhere in this
Indenture, or in any of the Notes, shall prevent the Company from making
payment of the principal of or interest on the Notes, at any time, except
under the conditions described in Section 1202 and except during the
pendency of any dissolution, winding up, liquidation or reorganization of
the Company within the meaning of Section 1203. Nothing contained in this
Article Twelve or elsewhere in this Indenture, or in any of the Notes, shall
prevent the application by the Trustee of any moneys deposited with it
hereunder, for such purpose, to the payment of or on account of the
principal of or interest on the Notes, unless, prior to the Business Day
next preceding the date upon which such principal shall have become payable,
or, in the case of any payment of or on account of interest unless, prior to
two Business Days before the date upon which such interest shall have become
payable, the Trustee shall have received written notice, directed to it at
its Corporate
<PAGE>
Trust Office, from the Company or any holder of Senior Indebtedness or any
trustee therefor of the existence of any of the conditions described in
Section 1202 or of any dissolution, winding up, liquidation or
reorganization of the Company within the meaning of Section 1203.
SECTION 1207. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Notes by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Twelve
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Twelve in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in this Indenture shall deprive or be
construed to deprive the Trustee of its rights as such holder.
SECTION 1209. Notices to Trustee.
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 Notes. Notwithstanding the provisions
of this Article Twelve or any oth- er provisions of this Indenture, the
Trustee shall not be charged with the knowledge of the existence of any
facts which would prohibit the making of any payment to or by the Trustee in
respect of the Notes, unless and until the Trustee shall have received
written notice thereof, directed to it at its Corporate Trust Office, from
the Company or any holder of Senior Indebtedness or any trustee thereof;
and, prior to the receipt of any such written notice, the Trustee, subject
to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person
under this Article Twelve, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
<PAGE>
SECTION 1210. No Fiduciary Duty by Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders of
Notes or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of
this Article Twelve or otherwise.
SECTION 1211. Paying Agent Treated as Trustee.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Twelve shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if such Paying Agent were named in this Article Twelve in place of the
Trustee.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDER IN CERTAIN CIRCUMSTANCES
SECTION 1301. Repayment Option upon Death of Holder.
(1) Upon the death of any Holder of a Note or Notes the Company shall
be required to pay up to $50,000 per deceased Holder in any one calendar
year period in principal amount of the Notes held by the deceased Holder of
such Notes at the date of such Holder's death, without any premium, together
with interest accrued thereon to the Repayment Date, in integral multiples
of $1,000 in excess of the minimum authorized denomination, as requested in
the manner and subject to the limitations, set forth below; provided,
however, that the Company shall not be required to make Repayments of more
than $50,000 in principal amount in any one calendar year period (plus
interest accrued on such amount) on Notes held by any one deceased
Noteholder or of more than an aggregate of $250,000 in principal amount
(plus interest accrued on such amount) on Notes held by any number of
deceased Noteholders in any one calendar year period. Subject to paragraph
(2) below, Repayment of such Notes shall be made in the order in which
requests therefor are received (up to $250,000 in principal amount in any
calendar year period plus accrued interest on such amount) within 30 days
following the receipt by the Company or the Trustee of the following:
(a) a written request for Repayment signed by a duly authorized
representative of the Holder, which request shall set forth the name of the
deceased Holder, the date of death of the deceased Holder, and the principal
amount of the Notes to be repaid; and
(b) the certificates representing the Notes to be repaid; and
<PAGE>
(c) evidence satisfactory to the Company and the trustee of the
death of such deceased Holder and the authority of the representative to
such extent as may be required by the Trustee.
(2) The Notes held by the deceased Holder shall not be entitled to
Repayment pursuant to this Section unless all of the following conditions
are met:
(a) the Notes to be repaid have been registered on the Note
Register in the deceased Holder's name since the Date of Issue or for a
period of at least six months prior to the date of the deceased Holder's
death, whichever is less; and
(b) either the Company or the Trustee has been notified in
writing of the request for Repayment within one year after the date of the
deceased Holder's death and, if less than all of such Holder's Notes are
repaid pursuant to such initial request and the representative of the
deceased Holder desires an additional Repayment, either the Company or the
Trustee has received a subsequent written notice of a request for an
additional Repayment of such Holder's Notes not more than one year after any
such preceding notice; and
(c) the Company has not made Repayments on Notes held by
deceased Noteholders in excess of $250,000 in principal amount (plus accrued
interest) in each calendar year period; and
(d) the Company is not, and, after giving effect to such
Repayment would not be, in default under any Senior Indebtedness; and
(e) the Company is not subject to any law, regulation,
agreement or administrative directive preventing such Repayment.
(3) Authorized representatives of a Holder shall include the
following: executors, administrators, or other legal representatives of an
estate; trustees of a trust; joint owners of Notes owned in joint tenancy or
tenancy by the entirety; custodians; conservators; guardians;
attorneys-in-fact; and other persons generally recognized as having legal
authority to act on behalf of another.
(4) For purposes of this Article Thirteen, the death of a Person
owning a Note in joint tenancy or tenancy by the entirety with another or
others shall be deemed the death of the Holder of the Note, and the entire
principal amount of the Note so held shall be subject to Repayment, together
with interest accrued thereon to the Repayment Date in accordance with the
provisions of this Article Thirteen. For purposes of this Article Thirteen,
the death of a Person owning a Note by tenancy in common shall be deemed the
death of a Holder of a Note only with respect to the deceased Holder's
interest in the Note so held by tenancy in common; except that in the event
a Note is held by husband and wife as tenants in common, the death of either
shall be deemed the death of the Holder of the Note, and the entire
principal amount of the Note so held shall be subject to Repayment in
accordance with the provisions of this Article Thirteen. A Person who,
during such Person's lifetime, was entitled to substantially all of the
<PAGE>
beneficial interests of ownership of a Note will, upon such Person's death,
be deemed the Holder thereof for purposes of this Article Thirteen,
regardless of the registered holder, if such beneficial interest can be
established to the satisfaction of the Trustee. Such beneficial interest
will be deemed to exist in typical cases of nominee ownership, ownership
under the Uniform Gifts to Minors Act, community property or other joint
ownership arrangements between a husband and wife, and trust arrangements
where one Person has substantially all of the beneficial ownership interests
in the Note during such Person's lifetime. Beneficial interests shall
include the power to sell, transfer, or otherwise dispose of a Note and the
right to receive the proceeds therefrom, as well as interest and principal
payable with respect thereto.
SECTION 1302. Repayment of Notes.
(1) Within 30 days after the receipt by the Company or the Trustee of
any request for Repayment duly made pursuant to Section 1301, the Company
shall deposit with the Trustee or with a Paying Agent or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003, an amount of money sufficient to repay the principal amount of
all Notes which are to be repaid, together with interest accrued thereon to
the Repayment Date, exclusive of installments of interest whose Stated
Maturity is on or prior to the Repayment Date, payment of which shall have
been made or duly provided for to the registered Holders of the Notes on the
relevant Regular Record Dates according to their terms and the provisions of
Section 307. The Notes so to be repaid shall become due and payable on the
Repayment Date with respect to each such Note in the amount to be repaid as
provided above and from and after the Repayment Date, such Notes shall cease
to bear interest unless the Company shall have defaulted in such Repayment.
(2) Immediately upon deposit with the Trustee or with a Paying Agent
or, if the Company is acting as its own Paying Agent, upon segregation and
holding in trust, of the amounts as provided above with respect to each Note
or portion thereof, the Company shall cause such Note or portion thereof to
be repaid. Installments of interest whose Stated Maturity is on or prior to
the Repayment Date shall be payable to the Holders of such Notes registered
as such on the relevant Regular Record Dates according to their terms and
the provisions of Section 307.
(3) If any Note duly requested to be repaid shall not be paid upon
the Repayment Date, the principal shall, until paid, bear interest from the
Repayment Date at the rate borne by the Note.
(4) No premium shall be payable by the Company upon Repayment
pursuant to this Article Thirteen.
SECTION 1303. Notes Repaid in Part.
The Company shall execute and the Trustee shall authenticate and
deliver with respect to any Note surrendered pursuant to this Article
Thirteen and to be repaid only in part, to the Holder of such Note, without
service charge, a new Note or Notes, of like
<PAGE>
series and of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unrepaid portion
of the principal of the Note so surrendered and repaid in part.
Notwithstanding any provision to the contrary in this Article Thirteen, if
the unrepaid portion is less than the smallest authorized denomination, the
Company shall be obligated to pay the Holder such amount in cash in the same
manner as the repaid portion. If required by the Company or the Trustee,
such Note so surrendered shall be duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution at any time, elect
to have either Section 1402 or Section 1403 hereof be applied to all
Outstanding Notes upon compliance with the conditions set forth below in
this Article Fourteen.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise under Section 1401 hereof of the option
applicable to this Section 1402, the Company shall be deemed to have been
discharged from its obligations with respect to all the Outstanding Notes on
the date the conditions set forth in Section 1404 hereof are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that
the Company shall be deemed to have paid and discharged the entire
indebtedness represented by Outstanding Notes except for (i) the rights of
Holders of Outstanding Notes to receive payments out of amounts deposited in
trust with the Trustee (as set forth in Section 1404 hereof) in respect of
the principal of and interest on such Notes when such payments are due, (ii)
the Company's obligations with respect to the Notes concerning issuing
temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen
Notes, and the maintenance of an office or agency for payment and money for
security payments held in trust, (iii) the rights, powers, trusts, duties
and immunities of the Trustee, and (iv) this Article Fourteen.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise under Section 1401 hereof of the option
applicable to this Section 1403, the Company shall be released from its
obligations under any covenant in Section 801 hereof and in Sections 1005,
1006 and 1009 through 1011 hereof with respect to the Outstanding Notes on
and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Notes shall thereafter be
deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent, declaration or Act (and the consequences of any thereof) in
connection with such
<PAGE>
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 Notes, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(3) hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1402 or Section 1403 hereof to the Outstanding Notes:
(i) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 hereof who shall agree to comply with the
provisions of this Article Fourteen 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
Notes, (A) cash in United States dollars in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount,
or (C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the principal of and interest on the Outstanding Notes on the
Stated Maturity (or Redemption Date, if applicable) of such principal (or on
any date (such date being referred to as the "Defeasance Redemption Date")
if when exercising under Section 1401 hereof either its option applicable to
Section 1402 hereof or its option applicable to Section 1403 hereof, the
Company shall have delivered to the Trustee an irrevocable notice to redeem
all of the Outstanding Notes on the Defeasance Redemption Date and
interest); provided that the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government Obligations to
said payments with respect to the Notes. For this purpose, "U.S.
Government Obligations" means securities that are (x) direct obligations of
the United States of America for the timely payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government
<PAGE>
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depository receipt;
(ii) In the case of an election under Section 1402 hereof, the
Company shall have delivered to the Trustee an opinion of independent
counsel in the United States of America stating that (A) the Company has
received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the date of this Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion of counsel in the United States of America
shall confirm that, the Holders of the Outstanding Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance had not occurred;
(iii) In the case of an election under Section 1403 hereof, the
Company shall have delivered to the Trustee an opinion of independent
counsel in the United States of America to the effect that the Holders of
the Outstanding Notes 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;
(iv) No default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit or, with
respect to Section 501(5) or Section 501(6) hereof, at any time during the
period ending on the 91st day after the date of deposit;
(v) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest with respect to any securities of the
Company;
(vi) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture;
(vii) The Company shall have delivered to the Trustee an
opinion of independent counsel to the effect that after the 91st day
following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(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 Notes over the other
creditors of the Company
<PAGE>
with the intent of defeating, hindering, delaying or defrauding creditors
of the Company;
(ix) No event or condition shall exist that would prevent the
Company from making payments of principal of and interest on the Notes on
the date of such deposit or at any time ending on the 91st day after the
date of such deposit; and
(x) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 1402 hereof or the covenant defeasance under Section 1403 hereof (as
the case may be) have been complied with.
* * * * * * * * * *
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
WESTBRIDGE CAPITAL CORP.
BY /s/ Ben E. McCurdy
ATTEST: ---------------------
/s/ Michael D. Norris
---------------------
LIBERTY BANK AND TRUST COMPANY
OF OKLAHOMA CITY, N.A.
BY /s/ Dee Anne Schmidt
ATTEST: -----------------------
/s/ Martha E. Ober
--------------------
<PAGE>
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
On the 28th day of February, 1995, before me personally came Ben E.
McCurdy, to me known, who, being by me duly sworn, did depose and say that
he is Vice President of Westbridge Capital Corp., one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Rita Milcarek
-----------------
"Official Seal"
Rita Milcarek
Notary Public, State of Illinois
My Commission Expires: 11/9/96
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
On the 28th day of February, 1995, before me personally came Dee Anne
Schmidt, to me known, who, being by me duly sworn, did depose and say that
he is Assistant Vice President of Liberty Bank and Trust Company of
Oklahoma, N.A., one of the corporations described in and which executed the
foregoing instrument; that she knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
she signed his name thereto by like authority.
/s/ Rita Milcarek
-----------------
"Official Seal"
Rita Milcarek
Notary Public, State of Illinois
My Commission Expires: 11/9/96
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