SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
X ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the fiscal year ended December 31, 1998
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIIES EXCHANGE
ACT OF 1934 (NO FEE REQUIRED)
For the transition period from ............... to .....................
Commission File Number
33-22976-NY
----------------------
INTERVEST CORPORATION OF NEW YORK
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
New York 13-3415815
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10 Rockefeller Plaza, New York, New York 10020-1903
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 218-2800
Securities Registered Pursuant to Section 12(b) of the Act:
None
----------------
(Title of Class)
Securities Registered Pursuant to Section 12(g) of the Act:
None
----------------
(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES X NO
Indicate by check mark if disclosure of delinquent filers pursuant to item 405
of Regulation SK is not contained herein, and will not be contained, to the best
of Registrant's knowledge in definitive proxy or information statements
incorporated by reference in Part III to this Form 10-K or any amendment to this
Form 10-K (X) .
Indicate the number of shares outstanding of each of the Registrant's classes of
Common Stock as of the latest practicable date.
Class of Common Stock Outstanding at February 28, 1999
--------------------- --------------------------------
Common Stock: No Par Value 31.84 Shares
Class B Stock: No Par Value 15.89 Shares
<PAGE>
TABLE OF CONTENTS
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PART I
Pages
Item 1 Description of Business 3
Item 2 Properties 7
Item 3 Legal Proceedings 7
Item 4 Submission of Matters to a Vote of Security Holders 7
PART II
Item 5 Market for the Registrant's Shares and Related
Stockholder Matters 8
Item 6 Selected Financial Data 9
Item 7 Management's Discussion and Analysis of Financial 9
Condition and Results of Operations
Item 7A Quantitative and Qualitative Disclosures about Market Risk 13
Item 8 Financial Statements and Supplementary Data 13
Item 9 Changes in and Disagreements with Accountants on 30
Accounting and Financial Disclosure
PART III
Item 10 Directors and Executive Officers of the Registrant 30
Item 11 Executive Compensation 31
Item 12 Security Ownership of Certain Beneficial Owners and Management 32
Item 13 Certain Relationships and Related Transactions 32
PART IV
Item 14 Exhibits, Financial Statement Schedules and Reports on Form 8-K 33
SIGNATURES 35
Supplemental Information to be Furnished with 36
Reports Filed Pursuant to Section 15(d) of the
Act.
<PAGE>
PART I
Item 1. Description of Business
Intervest Corporation of New York (the "Company") was formed in April 1987 by
Lowell S. Dansker, Lawrence G. Bergman and Helene D. Bergman for the purpose of
engaging in the real estate business, including the acquisition and purchase of
real estate mortgage loans.
The principal offices of the Company are located at 10 Rockefeller Plaza, Suite
1015, New York, New York 10020- 1903, and its telephone number is 212-218-2800.
The Company presently has no employees; and only one of its officers serves with
compensation. It presently owns mortgages on real estate, and intends to acquire
and originate additional mortgages on real estate. The Company may in the future
engage in any aspect of the real estate and mortgage finance business.
The Company also has two wholly-owned subsidiaries.
Present Business
The Company owns a portfolio of mortgages on improved real property. The
aggregate outstanding principal balance at December 31, 1998 due on such
mortgages is approximately $68,074,000 ($67,533,000 after adjusting for a
discount of $541,000). The company has in the past and may in the future own
"wraparound mortgages" under which the principal amount of and debt service on
one or more senior mortgages is included within the principal amount of and debt
service on the wraparound mortgage. The holder of the wraparound mortgage is
required to pay the obligations due under such senior mortgages from the
payments, which it receives on the wraparound mortgage.
For financial statement reporting purposes, all mortgages contributed or sold to
the Company by affiliates have been recorded at the historical cost of the
affiliate. The historical cost of the mortgage loans which originated in
connection with the sale of real estate includes a discount to reflect an
appropriate market interest rate at the date of origination.
Five mortgages owned by the Company are senior mortgages on net leased, single
tenant, free standing commercial properties, thirty-seven are senior mortgages
on multifamily residential apartment buildings, one is a junior mortgage on a
multifamily residential apartment building and one is a participation in a first
mortgage on a commercial property.
Twenty of the residential properties are located in New York City, three are
located in suburbs of New York City, four are located in the State of New
Jersey, five are located in the State of Florida, two are located in the state
of Connecticut, two are located in the District of Columbia, one is located in
the State of Pennsylvania and one is located in the State of Maryland. One of
the Company's mortgages is a blanket mortgage covering several residential
properties located in Philadelphia, Pennsylvania. Two of the residential
properties are owned by cooperative corporations (a form of owner-occupied
apartment ownership in New York City). Thirty-six of the residential properties
are rental properties, two of which have commercial space (stores) on the ground
floor. Thirty-five of the Company's mortgages on these properties are first
mortgages, and one is a junior mortgage. One of the mortgages is a participation
in a first mortgage on a commercial property in Florida.
Future Business Operations
The Company plans to engage in the real estate business, including the
acquisition and origination of additional mortgages in the future. Such
additional mortgages may be purchased from affiliates of the Company or from
unaffiliated parties. It is anticipated that such mortgages will be acquired or
originated using the proceeds of offerings of the Company's debt securities
and/or internally generated funds.
<PAGE>
The Company intends to continue to originate new mortgages, to acquire existing
mortgages, and to acquire equity interests in real property. In originating new
mortgages, the Company intends to act as a lender of money to owners of equity
interests in real property. The Company acquired certain existing mortgages from
mortgagees after it commenced business and intends to acquire additional
existing mortgages from mortgagees in the future. The Company does not presently
own any equity interests in real property nor has it acquired such an equity
interest in real property since the date it commenced business. However, the
Company may purchase equity interests in real property in the future or it may
acquire such an equity interest pursuant to a foreclosure upon a mortgage held
by it.
The Company's mortgage loans may include: (i) first mortgage loans; (ii) junior
mortgage loans; and (iii) wraparound mortgage loans.
The Company's mortgage loans will generally be secured by income-producing
properties. In determining whether to make mortgage loans, the Company will
analyze relevant real property and financial factors which may in certain cases
include such factors as the condition and use of the subject property, its
income-producing capacity and the quality, experience and creditworthiness of
the owner of the property. The Company's mortgage loans will generally not be
personal obligations of the borrower and will not be insured or guaranteed by
governmental agencies or otherwise. The Company may make both long-term and
short-term mortgage loans. The Company anticipates that generally its mortgage
loans will provide for balloon payments due at the time of their maturity.
With respect to the acquisition of equity interests in real estate, the Company
may acquire and retain title to properties or, may, directly or through a
subsidiary, retain an interest in a partnership formed to acquire and hold title
to real property.
While no such transactions are presently pending, the Company would, in
appropriate circumstances, consider the expansion of its business through
investments in or acquisitions of other companies engaged in real estate or
mortgage business activities.
Real Estate Investment Policies
While the Company has not previously made acquisitions of real property or
managed income-producing property, its management has had substantial experience
in the acquisition and management of properties and, in particular, multifamily
residential properties. The executive officers of the Company have been actively
involved in such activities for many years. (See "Item 10").
Real property that may be acquired will be selected by management of the
Company. The Board of Directors of the Company has not adopted any formal
policies regarding the percentage of the Company's assets that may be invested
in any single property, or in any type of property, or regarding the geographic
location of properties that may be acquired. No vote of any securities holders
of the Company is necessary for any investment in real estate.
The Company anticipates that any equity interests it may acquire will be in
commercial, income-producing properties, primarily multifamily residential
properties located in the New York metropolitan area. The acquisition of real
estate may be financed in reliance upon working capital, mortgage financing or a
combination of both. It is anticipated that properties selected for acquisition
would have potential for appreciation in value. While such properties would
typically generate cash flow from rentals, it is anticipated that income from
properties will generally be reinvested in capital improvements to the
properties.
While the Company would maintain close supervision over any properties that it
may own, independent managing agents may be engaged when deemed appropriate by
management. All such properties would, as a matter of policy, be covered by
property insurance in amounts deemed adequate in the opinion of management.
<PAGE>
Mortgage Investment Policy
Future investments in mortgages will be selected by management of the Company.
The Board of Directors of the Company has not adopted any formal policy
regarding the percentage of the Company's assets which may be invested in any
single mortgage, or in any type of mortgage investment, or regarding the
geographic location of properties on which the mortgages owned by the Company
are liens. However, it is the present intention of the management of the Company
to maintain the diversification of the portfolio of mortgages owned by the
Company. No vote of any security holders of the Company is necessary for any
investment in a mortgage.
The Company anticipates that it will acquire or originate senior and junior
mortgages, primarily on multifamily residential properties located in the New
York metropolitan area. The Company anticipates that the amount of each mortgage
it may acquire in the future will not exceed 85% of the fair market value of the
property securing such mortgage. Such mortgages generally will not be insured by
the Federal Housing Administration or guaranteed by the Veterans Administration
or otherwise guaranteed or insured in any way. The Company requires that all
mortgaged properties be covered by property insurance in amounts deemed adequate
in the opinion of management. The Company also acquires or originates mortgages
which are liens on other types of properties, including commercial and office
properties, and may resell mortgages.
Temporary Investment by Affiliates on Behalf of the Company
An affiliate of the Company may make a mortgage loan or purchase a mortgage in
its own name and temporarily hold such investment for the purpose of
facilitating the making of an investment by the Company, provided that any such
investment is acquired by the Company at a cost no greater than the cost of such
investment to the affiliate plus carrying costs and provided there is no other
benefit to the affiliate arising out of such transaction.
Certain Characteristics of the Company's Mortgage Investments
Mortgages typically provide for periodic payments of interest and, in some
cases, principal during the term of the mortgage, with the remaining principal
balance and any accrued interest due at the maturity date. The majority of the
mortgages owned by the Company provide for balloon payments at maturity, which
means that a substantial part or all of the original principal of the mortgage
is due in one lump sum payment at maturity. The property on which the mortgage
is a lien provides the security for the mortgage. If the net revenue from the
property is not sufficient to make all debt service payments due on mortgages on
the property, or if at maturity or the due date of any balloon payment the owner
of the property fails to raise the funds to make the payment (by refinancing,
sale or otherwise), the Company could sustain a loss on its investment in the
mortgage. To the extent that the aggregate net revenues from the Company's
mortgage investments are insufficient to provide funds equal to the payments due
under the Company's debt obligations, then the Company would be required to
utilize its working capital for such purposes or otherwise obtain the necessary
funds from outside sources. No assurance can be given that such funds would be
available to the Company.
With respect to any wraparound mortgages which may be originated by the Company
in the future, such wraparound mortgages are generally negotiated and structured
on an individual, case by case basis, and may be structured to include any or
all of the following provisions:
(i) The Company may lend money to a real property owner who would be obligated
to repay the senior underlying mortgage debt as well as the new wraparound
indebtedness owed to the Company.
(ii) The Company may legally assume the obligation to make the payments due on
the senior underlying mortgage debt.
(iii) The real property owner-debtor may agree to make payments to the Company
in satisfaction of both the senior underlying mortgage debt and the new
wraparound indebtedness owed to the Company.
<PAGE>
(iv) The Company may receive a mortgage on the real property to secure repayment
of the total amount of indebtedness (wraparound indebtedness and the senior
underlying mortgage indebtedness).
The mortgages owned by the Company that are junior mortgages are subordinate in
right of payment to senior mortgages on the various properties. In all cases, in
the opinion of management, the current value of the underlying property
collateralizing the mortgage loan is in excess of the stated amount of the
mortgage loan. Therefore, in the opinion of management of the Company, each
property on which a mortgage owned by the Company is a lien constitutes adequate
collateral for the related mortgage loan. Accordingly, in the event the owner of
a property fails to make required debt service payments, management believes
that, based upon current value, upon a foreclosure of the mortgage and sale of
the property, the Company would recover its entire investment. However, there
can be no assurance that the current value of the underlying property will be
maintained.
Loan Loss Experience
For financial reporting purposes, the Company considers a loan as delinquent or
non-performing when it is contractually past due 90 days or more as to principal
or interest payments. To date, the Company has only experienced a single default
or delinquency in its mortgage portfolio. That default has been cured and the
principal amount has been received by the Company. The Company evaluates its
portfolio of mortgage loans on an individual basis, comparing the amount at
which the investment is carried to its estimated net realizable value. No
allowance for loan losses is presently maintained.
Tax Accounting Treatment of Payments Received on Mortgages
The Company derives substantially all of its cash flow from debt service
payments which it receives on mortgages owned by it. The tax accounting
treatment of such debt service payments, as income or return of capital, depends
on the particular mortgage. In the case of mortgages which pay interest only,
the entire debt service payment prior to maturity received by the Company is
treated as income and the repayment of principal is generally considered a
return of capital. In the case of mortgages which include amortization of
principal in the debt service payment received by the Company, the amount
representing amortization of principal is generally treated as a return of
capital for tax accounting purposes. However, the Company will report $199,000
of additional taxable income upon the collection of $803,000 of principal
applicable to five mortgages due to deferrals of taxable income in connection
with prior real estate transactions.
Financial Accounting Treatment of Payments Received on Mortgages
For financial reporting purposes, the Company's basis in mortgages originated in
connection with real estate sale transactions is less than the face amount
outstanding. This difference is attributable to discounts recorded by the
Company to reflect a market rate of interest at the date the loans were
originated. These discounts will be amortized over the lives of the mortgages.
Effect of Government Regulation
Investment in mortgages on real properties presently may be impacted by
government regulation in several ways. Residential properties may be subject to
rent control and rent stabilization laws. As a consequence, the owner of the
property may be restricted in its ability to raise the rents on apartments. If
real estate taxes, fuel costs and maintenance of and repairs to the property
were to increase substantially, and such increases are not offset by increases
in rental income, the ability of the owner of the property to make the payments
due on the mortgage as and when they are due might be adversely affected.
<PAGE>
Laws and regulations relating to asbestos have been adopted in many
jurisdictions, including New York City, which require that whenever any work is
undertaken in a property in an area in which asbestos is present, the asbestos
must be removed or encapsulated in accordance with such applicable local and
federal laws and regulations. The cost of asbestos removal or encapsulation may
be substantial, and if there were not sufficient cash flow from the property,
after debt service on mortgages, to fund the required work, and the owner of the
property fails to fund such work from other sources, the value of the property
could be adversely affected, with consequent impairment of the security for the
mortgage.
Laws regulating the storage, disposal and clean up of hazardous or toxic
substances at real property have been adopted at the federal, state and local
levels. Such laws may impose a lien on the real property superior to any
mortgages on the property. In the event such a lien were imposed on any property
which serves as security for a mortgage owned by the Company, the security for
such mortgage could be impaired.
Item 2. Properties
None.
Item 3. Legal Proceedings
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
<PAGE>
PART II
Item 5. Market for the Registrant's Shares and Related Stockholder Matters
There is no established trading market for the Company's shares of common stock
or Class B stock. As of February 28, 1999, there were three recordholders of the
Company's shares of common stock and one recordholder of the Class B stock. In
the two most recent fiscal years, no cash dividends were declared or paid with
respect to the Company's common stock or Class B stock.
<PAGE>
<TABLE>
<CAPTION>
Item 6. Selected Financial Data
Income Statement Data
Year Ended December 31,
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1998 1997 1996 1995 1994
---- ---- ---- ---- ----
Revenue
<S> <C> <C> <C> <C> <C>
Interest income $11,058,000 $10,088,000 $ 9,497,000 $ 7,984,000 $ 6,368,000
Other income 744,000 428,000 372,000 332,000 283,000
Gain on early repayment of
discounted mortgage receivable 291,000 215,000 282,000 82,000 17,000
----------- ----------- ----------- ----------- -----------
$12,093,000 $10,731,000 $10,151,000 $ 8,398,000 $ 6,668,000
----------- ----------- ----------- ----------- -----------
Expenses
Interest $ 8,510,000 $ 8,181,000 $ 7,053,000 $ 6,227,000 $ 4,591,000
General and administrative 944,000 773,000 948,000 657,000 483,000
Amortization of deferred
bond offering costs 891,000 958,000 869,000 748,000 655,000
----------- ----------- ----------- ----------- -----------
$10,345,000 $9,912,000 $ 8,870,000 $ 7,632,000 $ 5,729,000
----------- ----------- ----------- ----------- -----------
Income Before Income Taxes $ 1,748,000 $ 819,000 $ 1,281,000 $ 766,000 $ 939,000
Provision for Income Taxes 801,000 373,000 584,000 324,000 403,000
----------- ----------- ----------- ----------- -----------
Net Income $ 947,000 $ 446,000 $ 697,000 $ 442,000 $ 536,000
=========== =========== =========== =========== ===========
Ratio of Earnings to Fixed
Charges (1) 1.2 1.1 1.2 1.1 1.2
</TABLE>
(1) The actual ratio of earnings to fixed charges has been computed by
dividing earnings (before state and federal taxes and fixed charges) by
fixed charges. Fixed charges consist of interest incurred during the
period and amortization of deferred debenture offering costs.
<TABLE>
<CAPTION>
Balance Sheet Data
December 31
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1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Mortgages receivable $67,533,000 $74,316,000 $69,699,000 $55,146,000 $56,666,000
Total assets 99,887,000 95,571,000 92,223,000 77,579,000 64,745,000
Long term obligations 85,791,000 82,966,000 79,006,000 66,850,000 54,427,000
Stockholders' equity 11,568,000 10,521,000 10,075,000 9,378,000 8,936,000
</TABLE>
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Liquidity and Capital Resources:
The Company is engaged in the real estate business, including the origination
and purchase of real estate mortgage loans, consisting of first mortgage, junior
mortgage and wraparound mortgage loans. The Company's current investment policy
emphasizes the investment in mortgage loans on income producing properties. The
majority of the Company's loans are expected to mature within approximately five
years.
The Company's liquidity is managed to ensure that sufficient funds are available
to meet maturities of borrowings or to make other investments, taking into
account anticipated cash flows and available sources of funds. The Company's
principal sources of funds have consisted of borrowings (principally through the
issuance of its subordinated debentures), mortgage repayments and cash flow from
ongoing operations. Total stockholders' equity at December 31, 1998 was
$11,568,000. The Company considers its current liquidity and additional sources
of funds sufficient to satisfy its outstanding commitments and its maturing
liabilities.
Results of Operations:
Year Ended December 31, 1998 and 1997
Interest Income for 1998 was $11,058,000 as compared to $10,088,000 for 1997.
The increase of $970,000 resulted mainly from a higher average balance of
mortgages receivable in 1998 as compared with 1997, offset in part by lower
interest rates on certain mortgages.
Interest expense for the 1998 period was $8,510,000 as compared to $8,181,000
for the 1997 period. The increase of $329,000 resulted mainly from an increase
in long term obligations, offset in part by decrease in interest rates in 1998.
Other income for 1998 was $744,000 as compared to $428,000 for 1997. The
increase of $316,000 resulted from increases in prepayment premium and mortgage
late payment penalties.
General and administrative expenses for 1998 was $944,000 as compared to
$773,000 for 1997. The increase of $171,000 resulted mainly from an increase in
payroll expenses.
The provision for income taxes are $801,000 and $373,000 for 1998 and 1997,
respectively. These provisions represent 46% of pretax income for each period.
Year Ended December 31, 1997 and 1996
Interest income for 1997 was $10,088,000 as compared to $9,497,000 for 1996. The
increase of $591,000 resulted mainly from an increase in mortgages receivable.
Interest paid by the Company on most of its debentures, as well as the interest
earned on many of its mortgages, is keyed to the prime rate, which was 8.25%
at December 31, 1996, and increased to 8.5% on March 26, 1997.
<PAGE>
Interest expense for the 1997 period was $8,181,000 as compared to $7,053,000
for the 1996 period. The increase of $1,128,000 resulted mainly from an increase
in long term obligations.
General and administrative expenses for 1997 was $773,000 as compared to
$948,000 for 1996. The decrease of $175,000 resulted mainly from the decrease in
management fees and payroll expenses.
The provision for income taxes are $373,000 and $584,000 for 1997 and 1996,
respectively. These provisions represent 46% of pretax income for each period.
Since the Company intends to continue to expand its asset base, including its
mortgage portfolio, it is anticipated that its interest income will continue to
grow. To the extent that such growth is funded in reliance upon long-term
obligations, interest expense will likewise increase. The size of any such
increase will, of course, depend upon the principal amounts of the additional
assets or liabilities, as well as interest rates.
Since the Company is engaged in the real estate business, its results of
operations are affected by general economic trends in real estate markets, as
well as by trends in the general economy and the movement of interest rates.
Since the properties underlying the Company's mortgages are concentrated in the
New York City area, the economic condition in that area can also have an impact
on the Company's operations.
The number of instances of prepayment of mortgage loans tends to increase during
periods of declining interest rates and tends to decrease during periods of
increasing interest rates. Certain of the Company's mortgages include prepayment
provisions, and others prohibit prepayment of indebtedness entirely. In any
event, the Company believes that it would be able to reinvest the proceeds of
any prepayments of mortgage loans in comparable mortgages so that prepayments
would not have any materially adverse effect on the Company's business.
The rental housing market in New York City remains stable and the Company
expects that such properties will continue to appreciate in value with little or
no reduction in occupancy rates. The Company's mortgage portfolio is composed
predominantly of mortgages on multi-family residential properties, most of which
are subject to applicable rent control and rent stabilization statutes and
regulations. In both cases, any increases in rent are subject to specific
limitations. As such, properties of the nature of those constituting the most
significant portion of the Company's mortgage portfolio are not affected by the
general movement of real estate values in the same manner as other
income-producing properties.
The Company's mortgages are generally acquired or originated for investment and
not for resale in the secondary market, and it is, in general, the Company's
intention to hold such mortgages to maturity. The Company's mortgage loans
generally do not meet the criteria set forth by relevant federal agencies, and
as a result are not readily marketable in the secondary market.
Impact of Inflation:
The Company may lend at fixed interest rates that exceed the rates applicable,
from time to time, to the Debentures payable by the Company. Under such
circumstances inflation has not had a material effect on the Company's
continuing operations. Should inflation result in rising interest rates, the
Company would have to devote a higher percentage of the interest payments it
receives from its fixed rate mortgages to meet the interest payments due on the
Debentures. The extent to which the Company may be required to allocate the
interest payments it receives to the payment of the interest due on the
Debentures as a result of increasing interest rates is limited because the
interest payable on both principal and accrued interest on the Debentures may
not exceed a certain maximum percent per annum. Should the Company be required
to pay the maximum interest payable on the Debentures, the Company may be
required to use its working capital for purposes of interest payments.
<PAGE>
Business:
The Company is engaged in the real estate business and has historically invested
primarily in real estate mortgage loans secured by income producing real
property. Such transactions typically require an understanding of the underlying
real estate transaction and rapid processing and funding as a principal basis
for competing in the making of these loans. The Company does not finance new
construction.
At December 31, 1998, 44% of the outstanding principal amount of the Company's
loans (net of discounts) were secured by properties located in the greater New
York metropolitan area. The balance of the Company's loans are secured by
properties located in Connecticut, District of Columbia, Florida, Georgia,
Maryland, New Jersey, upstate New York, Pennsylvania and Virginia.
Certain of the Company's real estate mortgage loans bear interest at a fixed
rate. The balance of such loans bear interest at fluctuating rates. As of
December 31, 1998, approximately 48% of the Company's mortgage portfolio was
comprised of fixed rate mortgages. On the substantial majority of these
mortgages, such rate becomes floating based on bank prime rates, generally by
12/31/2000. Interest on the loans is usually payable monthly.
At December 31, 1998, the Company's portfolio consisted of 44 real estate
mortgage loans totaling $68,074,000 in the aggregate face principal amount
($67,533,000 in carrying amount for financial reporting purposes, the difference
representing unearned discounts). Of the principal amount of real estate loans
outstanding at December 31, 1998, 99% represent first mortgage loans and 1%
represent junior mortgage loans.
The Company may also, from time to time, acquire interests in real property,
including fee interests.
Investment Policy-Operations:
The Company's current investment policy related to mortgages emphasizes
investments in real estate mortgages secured by income producing real property,
located primarily in the greater New York metropolitan area.
The properties to be mortgaged are personally inspected by management and
mortgage loans are made only on those properties where management is
knowledgeable as to operating income and expense. The Company generally relies
upon its management in connection with the valuation of properties. From time to
time, however, it may engage independent appraisers and other agents to assist
in determining the value of income-producing properties underlying mortgages, in
which case the costs associated with such services are generally paid by the
mortgagor.
The Company's current investment policy related to real estate acquisitions
emphasizes investments in income-producing properties located primarily in the
New York metropolitan area.
Current Loan Status:
At December 31, 1998, the Company had 44 real estate loans in its portfolio,
totaling $68,074,000 (face amount) in aggregate principal amount. Interest rates
on the mortgage portfolio range between 6% and 15% per annum. Certain mortgages
have been discounted utilizing rates between 11% and 17% per annum.
<PAGE>
Certain information concerning the Company's mortgage loans outstanding at
December 31, 1998 is set forth below:
Carrying
Amount of No. of
Mortgage Prior Liens Loans
-------- ----------- -----
First Mortgage Loans $67,033,000 $ 0 43
Junior Mortgages 500,000 1,300,000 1
----------- ----------- --
$67,533,000 $ 1,300,000 44
=========== =========== ==
The historical cost of the mortgage loans, which originated in connection with
the sale of real estate includes a discount to reflect an appropriate market
interest rate at the date of origination.
Competition:
The Company competes for acceptable investments with real estate investment
trusts, commercial banks, insurance companies, savings and loan associations,
pension funds and mortgage banking firms, many of which have greater resources
with which to compete for desirable mortgage loans.
Year 2000 Readiness Disclosure:
The Year 2000 issue is the result of computer programs, which were written using
two digits rather than four digits to define the applicable year. As a result,
such programs may recognize a date using "00" as the year 1900 instead of the
year 2000, which could result in system failures or miscalculations.
The Company's operations are real estate related and are handled by desktop
computer processing. Such processing utilizes third-party software. Software
that is used to process the Company's general ledger, general cash
disbursements, cash receipts and loan accounting is Year 2000 compliant.
Incidental calculations are performed on spreadsheets, which are not date
dependent. The Company's ability to produce revenues is also not dependent upon
computer systems.
The Company also has registered subordinated debentures payable for which the
Company relies on a third-party vendor to provide registrar and trustee
services. Such vendor has informed the Company that it currently has a
continuous program to achieve Year 2000 compliance for its mission-critical
systems, and that the renovation and testing of such systems has been
substantially completed. Should this outside service provider not be able to
provide complete assurance of being Year 2000 compliant, the Company will
terminate its relationship and transfer to a Year 2000 compliant vendor for the
required services. In connection with the debentures, the Company utilizes
third-party software to generate checks for the payment of interest to the
debenture holders. This software will be upgraded to become Year 2000 compliant.
The upgraded version of the software is scheduled for installation and testing
in April 1999.
The Company has determined that the costs of making modifications to correct any
Year 2000 issues will not be material. Although management believes that the
Company will not incur material costs associated with the Year 2000 issue, there
can be no assurances that all hardware and software that the Company will use
will be Year 2000 compliant. Management cannot predict the amount of financial
difficulties it may incur due to its customers' and vendors' inability to
perform according to their agreements with the Company or the effects that other
third parties may cause as a result of this issue. Therefore, there can be no
assurance that the failure or delay of others to address the Year 2000 issue or
that the costs involved in such process will not have a material adverse effect
on the Company's business, financial condition, and results of operations.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
Not Applicable
Item 8. Financial Statements and Supplementary Data Pages
------------------------------------------- -----
Report of Independent Auditors . . . . . . . . . . . . . . . . . 15
Consolidated Balance Sheets as of December 31, 1998 and 1997. . . 16
Consolidated Statements of Operations
for the Years Ended December 31, 1998, 1997 and 1996. . . . . . . 17
Consolidated Statements of changes in stockholders' equity
for the years ended December 31, 1998, 1997 and 1996 . . . . . 18
Item 8. Financial Statements and Supplementary Data (contd.)
Consolidated Statements of Cash Flows for
the Years Ended December 31, 1998, 1997 and 1996 . . . . . . 19
Notes to Financial Statements . . . . . . . . . . . . . . . . . . 20
Schedule IV -- Mortgage Loans on Real Estate -- December 31, 1998. 27
Other financial statement schedules and inapplicable periods with respect to
schedules listed above are omitted because the conditions requiring their filing
do not exist or the information required thereby is included in the financial
statements filed, including the notes thereto.
<PAGE>
INDEPENDENT AUDITORS' REPORT
Board of Directors and Stockholders
Intervest Corporation of New York
New York, New York
We have audited the accompanying consolidated balance sheets of Intervest
Corporation of New York and subsidiaries (the "Company") as of December 31, 1998
and 1997, and the related consolidated statements of operations, changes in
stockholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1998. Our audits also included the financial statement
schedule listed in the Index at Item 14(a). These financial statements and
related schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
related schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements enumerated above present fairly, in all
material respects, the consolidated financial position of Intervest Corporation
of New York and subsidiaries as of December 31, 1998 and 1997, and the
consolidated results of their operations and cash flows for each of the years in
the three-year period ended December 31, 1998 in conformity with generally
accepted accounting principles. Also, in our opinion, the schedule referred to
above, when considered in relation to the basic financial statements taken as a
whole, presents fairly, in all material respects, the information set forth
therein.
Richard A. Eisner & Company, LLP
New York, New York
February 2, 1999
<PAGE>
Consolidated Balance Sheets
December 31,
------------
1998 1997
---- ----
ASSETS
Cash and cash equivalents
$27,426,000 $15,596,000
Mortgages receivable, including due
from affiliates of $500,000 in 1998
and $6,250,000 in 1997 (Notes B, D and F) 67,533,000 74,316,000
Deferred debenture offering costs, net of
accumulated amortization of $3,482,000
in 1998 and $2,675,000 in 1997 (Note B) 3,646,000 4,270,000
Other assets (Note H) 1,282,000 1,389,000
----------- -----------
$99,887,000 $95,571,000
=========== ===========
LIABILITIES
Accounts payable and accrued expenses $ 169,000 $ 114,000
Mortgage escrow deposits 2,035,000 1,617,000
Subordinated debentures payable (Note C) 80,300,000 78,000,000
Debenture interest payable at maturity (Note C) 5,491,000 4,966,000
Deferred mortgage interest and fees 324,000 353,000
----------- -----------
88,319,000 85,050,000
----------- -----------
Commitments and other matters (Note G)
STOCKHOLDERS' EQUITY
Common stock, no par value; authorized
200 shares; issued and outstanding
32 shares 2,000,000 2,000,000
Class B common stock, no par value;
authorized 100 shares; issued and
outstanding 16 shares (Note E) 100,000
Additional paid-in capital 3,509,000 3,509,000
Retained earnings 5,959,000 5,012,000
----------- -----------
11,568,000 10,521,000
----------- -----------
$99,887,000 $95,571,000
=========== ===========
<PAGE>
Consolidated Statements of Operations
Year Ended December 31,
-----------------------
1998 1997 1996
---- ---- ----
Revenue:
Interest income:
Affiliates $ 673,000 $ 693,000 $ 693,000
Others 10,385,000 9,395,000 8,804,000
---------- --------- ---------
11,058,000 10,088,000 9,497,000
Other income (Notes D and F) 744,000 428,000 372,000
Gain on early repayment of
discounted mortgages
receivable (Note D) 291,000 215,000 282,000
---------- --------- ---------
12,093,000 10,731,000 10,151,000
---------- --------- ---------
Expenses:
Interest 8,510,000 8,181,000 7,053,000
General and administrative (Note F) 944,000 773,000 948,000
Amortization of deferred
debenture offering costs (Note B) 891,000 958,000 869,000
---------- --------- ---------
10,345,000 9,912,000 8,870,000
---------- --------- ---------
Income before income taxes 1,748,000 819,000 1,281,000
Provision for income taxes (Note H) 801,000 373,000 584,000
---------- --------- ---------
Net income $ 947,000 $ 446,000 $ 697,000
========== ========= =========
<PAGE>
Consolidated Statements of Changes in Stockholders' Equity
<TABLE>
<CAPTION>
Class B
Common Stock Common Stock
------------ ------------ Additional
Paid-in Retained
Shares Amount Shares Amount Capital Earnings Total
------ ------ ------ ------ ------- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Balance - January 1, 1996 32 $ 2,000,000 $3,509,000 $3,869,000 $ 9,378,000
Net income for the year ended December 31, 1996 697,000 697,000
-- ----------- -- --------- ---------- ----------- -----------
Balance - December 31, 1996 32 2,000,000 3,509,000 4,566,000 10,075,000
Net income for the year ended December 31, 1997 446,000 446,000
-- ----------- -- --------- ---------- ----------- -----------
Balance - December 31, 1997 32 2,000,000 3,509,000 5,012,000 10,521,000
Issuance of shares 16 $ 100,000 100,000
Net income for the year ended December 31, 1998 947,000 947,000
-- ----------- -- --------- ---------- ----------- -----------
Balance - December 31, 1998
32 $ 2,000,000 16 $ 100,000 $3,509,000 $ 5,959,000 $11,568,000
== =========== == ========= ========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Consolidated Statements of Cash Flows
Year Ended December 31,
-----------------------
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 947,000 $ 446,000 $ 697,000
Adjustments to reconcile net income to net cash provided
by operating activities:
Amortization of discount on mortgages receivable (569,000) (435,000) (421,000)
Amortization of deferred debenture offering costs 891,000 958,000 869,000
Gain on early repayment of discounted mortgages (291,000) (215,000) (282,000)
Changes in:
Other assets 107,000 (251,000) (240,000)
Accounts payable and accrued expenses 55,000 (292,000) 342,000
Mortgage escrow deposits 418,000 (739,000) 1,335,000
Debenture interest payable at maturity 525,000 1,460,000 1,374,000
Deferred mortgage interest and fees (29,000) (27,000) 114,000
------------ ------------ ------------
Net cash provided by operating activities 2,054,000 905,000 3,788,000
------------ ------------ ------------
Cash flows from investing activities:
Collection of mortgages receivable 49,137,000 25,464,000 20,924,000
Mortgages receivable acquired - affiliates (2,000,000)
Mortgages receivable acquired - others (39,494,000) (29,431,000) (34,774,000)
Principal payments of mortgages payable (18,000)
------------ ------------ ------------
Net cash provided by (used in) investing activities 7,643,000 (3,967,000) (13,868,000)
------------ ------------ ------------
Cash flows from financing activities:
Proceeds from issuance of Class B common stock 100,000
Proceeds from subordinated debenture offerings 4,800,000 8,500,000 17,000,000
Payment of debenture offering costs (267,000) (753,000) (1,479,000)
Redemption of subordinated debentures (2,500,000) (6,000,000) (6,200,000)
------------ ------------ ------------
Net cash provided by financing activities 2,133,000 1,747,000 9,321,000
------------ ------------ ------------
Net increase (decrease) in cash and cash equivalents 11,830,000 (1,315,000) (759,000)
Cash and cash equivalents at beginning of year 15,596,000 16,911,000 17,670,000
------------ ------------ ------------
Cash and cash equivalents at end of year $ 27,426,000 $ 15,596,000 $ 16,911,000
============ ============ ============
</TABLE>
<PAGE>
Note A - The Company
Intervest Corporation of New York (the "Company") was formed by Lowell S.
Dansker, Lawrence G. Bergman and Helene D. Bergman for the purpose of engaging
in the real estate business, including the origination and purchase of real
estate mortgage loans.
Note B - Significant Accounting Policies
[1] Consolidation policy:
The financial statements include the accounts of all subsidiaries.
Material intercompany items are eliminated in consolidation.
[2] Mortgage loans:
Loans are stated at their outstanding principal balances, net of any
deferred fees or costs on originated loans and unamortized discounts on
purchased loans. Interest income is accrued on the unpaid principal
balance. Discounts are amortized to income over the life of the related
receivables using the constant interest method. Loan origination fees net
of certain direct origination costs are deferred and recognized as an
adjustment of the yield of the related loans.
[3] Allowance for losses:
An allowance for loss related to loans that are impaired is based on
discounted cash flows using the loan's initial effective interest rate or
the fair value of the collateral. Management's periodic evaluation of the
need for, or adequacy of the allowance is based on the Company's past
loan loss experience, known and inherent risks in the portfolio, adverse
situations that may affect the borrower's ability to repay (including the
timing of future payments), the estimated value of the underlying
collateral and other relevant factors. This evaluation is inherently
subjective as it requires material estimates including the amounts and
timing of future cash flows expected to be received on any impaired loans
that may be susceptible to significant change. For financial reporting
purposes mortgages are deemed to be delinquent when payment of either
principal or interest is more than 90 days past due.
[4] Deferred debenture offering costs:
Costs relating to offerings of debentures are amortized over the terms of
the debentures based on serial maturities. Deferred debenture offering
costs consist primarily of underwriters' commissions.
<PAGE>
Note B - Significant Accounting Policies (continued)
[5] Statement of cash flows:
For purposes of the statement of cash flows, the Company considers all
highly liquid instruments purchased with an original maturity of three
months or less to be cash equivalents. Interest and income taxes were
paid as follows:
Year Ended
December 31, Interest Income Taxes
------------ -------- ------------
1998 $7,985,000 $ 657,000
1997 6,721,000 827,000
1996 5,679,000 196,000
[6] Estimated fair value of financial instruments:
The Company considers the carrying amounts presented for mortgages
receivable and subordinated debentures payable on the consolidated
balance sheets to be reasonable approximations of fair value. The
Company's variable or floating interest rates on large portions of its
receivables and payables approximate those which would prevail in current
market transactions. Considerable judgment is necessarily required in
interpreting market data to develop the estimates of fair value, and
accordingly, the estimates are not necessarily indicative of the amounts
that the Company could realize in a current market transaction.
[7] Use of estimates:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
[8] Concentration of credit risk:
[a] The Company places its temporary cash investments with higher
credit-quality financial institutions, including a bank which is
affiliated with the Company and in governmental obligations. Such
investments are generally in excess of the FDIC insurance limit. The
Company has not experienced any losses from such investments.
[b] The Company's mortgage portfolio is composed predominantly of
mortgages on multi-family residential properties in the New York City
area, most of which are subject to applicable rent control and rent
stabilization statutes and regulations. In both cases, any increases
in rent are subject to specific limitations. As such, properties of
the nature of those constituting the most significant portion of the
Company's mortgage portfolio are not affected by the general movement
of real estate values in the same manner as other income-producing
properties, although there can be no assurances, that this will
continue. The rental housing market in New York City has remained
stable.
<PAGE>
Note C - Subordinated Debentures Payable
The Company's Registered Floating Rate Redeemable Debentures consist of the
following:
December 31,
------------
1998 1997
---- ----
Series 5/13/91, interest at 2% above prime $ 5,000,000 $ 6,000,000
Series 2/20/92, interest at 2% above prime 4,500,000 4,500,000
Series 6/29/92, interest at 2% above prime 7,000,000 7,000,000
Series 9/13/93, interest at 2% above prime 8,000,000 8,000,000
Series 1/28/94, interest at 2% above prime 4,500,000 4,500,000
Series 10/28/94, interest at 2% above prime 4,500,000 4,500,000
Series 5/12/95, interest at 2% above prime 9,000,000 9,000,000
Series 10/19/95, interest at 2% above prime 9,000,000 9,000,000
Series 5/10/96, interest at 1% above prime 1,000,000
Series 5/10/96, interest at 2% above prime 10,000,000 10,000,000
Series 10/15/96, interest at 1% above prime 500,000
Series 10/15/96, interest at 2% above prime 5,500,000 5,500,000
Series 4/30/97, interest at 9% 500,000 500,000
Series 4/30/97, interest at 1% above prime 8,000,000 8,000,000
Series 11/10/98, interest at 8% 1,400,000
Series 11/10/98, interest at 8.5% 1,400,000
Series 11/10/98, interest at 9% 2,000,000
----------- -----------
$80,300,000 $78,000,000
=========== ===========
"Prime" refers to the prime rate of Chase Manhattan Bank.
Prime was 7 3/4% on December 31, 1998. Minimum interest is 9 1/2% and maximum
interest is 15% on Series 5/13/91. Series 2/20/92 has minimum interest of 8% and
maximum interest of 14%, Series 6/29/92 has maximum interest of 14%, Series
9/13/93, 1/28/94, 10/28/94, 5/12/95, 10/19/95, 5/10/96, 10/15/96 and 4/30/97 due
October 1, 2005 have maximum interest of 12%.
Payment of interest on an aggregate of $16,250,000 of debentures is deferred
until maturity and earns interest at prime. Any debenture holder who has
deferred receipt of interest may at any time elect to receive the deferred
interest and subsequently receive regular payments of interest, except holders
of Series 11/10/98.
The debentures may be redeemed, in whole or in part, at any time at the option
of the Company. For debentures issued after 1996, redemption would generally be
at a premium of 1% or 2% if the redemption is prior to 2000. After January 1,
2000 Series 11/10/98 debenture holders can require the Company to repurchase up
to $100,000 principal amount of debentures plus accrued interest each year.
The debentures are unsecured and subordinate to all present and future senior
indebtedness, as defined.
<PAGE>
Note C - Subordinated Debentures Payable (continued)
Maturities of debentures are summarized as follows:
Year Ending
December 31,
1999 $10,000,000
2000 7,000,000
2001 9,400,000
2002 4,500,000
2003 5,900,000
Thereafter until 2005 43,500,000
----------
$80,300,000
==========
Note D - Mortgages Receivable
Information as to mortgages receivable is summarized as follows:
December 31,
------------
1998 1997
---- ----
First mortgages $67,574,000 $68,668,000
Junior mortgages 500,000 6,534,000
----------- -----------
68,074,000 75,202,000
Less unearned discount 541,000 886,000
----------- -----------
$67,533,000 $74,316,000
=========== ===========
Interest rates on mortgages range from 6% to 15%. Certain mortgages have been
discounted utilizing rates ranging from 11% to 17%.
During 1998 and 1997 certain mortgages were paid in full prior to their maturity
date. This resulted in the recognition of a gain, which represents the balance
of the unamortized discount applicable to these mortgages.
Other income includes pre-payment premiums of $515,000, $271,000 and $228,000 in
1998, 1997 and 1996, respectively.
<PAGE>
Maturities of mortgages receivable are summarized as follows:
Year Ending
December 31,
------------
1999 $42,997,000
2000 8,912,000
2001 773,000
2002 932,000
2003 1,134,000
Thereafter until 2015 13,326,000
-----------
$68,074,000
===========
<PAGE>
Note D - Mortgages Receivable (continued)
The Company evaluates its portfolio of mortgage loans on an individual basis,
comparing the amount at which the investment is carried to its estimated net
realizable value. At the respective balance sheet dates, no allowances were
required.
Note E - Class B Common Stock
In August 1998, the Company's certificate of incorporation was amended to
authorize 100 shares of Class B stock. Class B shares have voting rights equal
to those of common shares, are convertible to common shares at the rate of one
share of common stock to three shares of Class B stock, contain restrictions as
to dividends and transfers and are junior to common shares in liquidation.
The Company's Executive Vice-President who is also a relative of the common
stockholders, purchased 15.89 shares for $100,000 in August 1998.
Note F - Related Party Transactions
Intervest Securities Corporation, an affiliate of the Company, acted as the
placement agent in the Company's 1998 private placement of subordinated
debentures and received commissions and fees aggregating $258,300 in connection
therewith.
Other income includes fees of $6,000 from affiliates in both 1998 and 1997 and
$8,000 in 1996.
The Company utilizes personnel and other facilities of affiliated entities and
is charged service fees for general and administrative expenses for placing
mortgages, servicing mortgages and distributing debenture interest checks. Such
fees amounted to $295,000, $264,000 and $367,000 in 1998, 1997 and 1996,
respectively. Management believes these service fees are reasonable.
The Company participates with Intervest Bank in one mortgage. The balance of the
Company's participation in this mortgage was $237,000 at December 31, 1998. The
stockholders of the Company are officers, directors and stockholders of the
parent of Intervest Bank.
Note G - Commitments and Other Matters
[1] Office lease:
The Company occupies its office space under a lease which terminates on
September 30, 2004. In addition to minimum rents the Company is required to pay
its proportionate share of increases in the building's real estate taxes and
costs of operation and maintenance as additional rent. Rent expense amounted to
$177,000, $176,000 and $180,000 for 1998, 1997 and 1996, respectively.
<PAGE>
Note G - Commitments and Other Matters (continued)
[1] Office lease: (continued)
Future minimum rents under the lease are as follows:
Year Ending
December 31,
------------
1999 $ 174,902
2000 179,133
2001 191,828
2002 191,828
2003 191,828
Thereafter 143,871
----------
$1,073,390
==========
The Company shares this space with affiliates who were charged rent of
$71,000, $64,000 and $63,000 in 1998, 1997 and 1996, respectively.
[2] Employment agreement:
Effective as of July 1, 1995, the Company entered into an employment
agreement with its Executive Vice- President, who is related to the
stockholders, for a term of ten years at an annual salary in the present
amount of $148,877, which is subject to increase annually by six percent
or by the percentage increase in the consumer price index, if higher. In
the event of the executive's death or disability, one-half of this amount
will continue to be paid for a term as defined in the agreement.
Effective August 3, 1998, the Company modified the employment agreement
to provide for additional compensation of $1,000 per month for each
$10,000,000 of gross assets of the Company in excess of $100,000,000.
Note H - Income Taxes
The Company has provided for income taxes in the periods presented based on the
federal, state and city tax rates in effect for these periods.
The provision for income taxes consists of the following components:
Year Ended December 31,
-----------------------
1998 1997 1996
---- ---- ----
Current taxes:
Federal $475,000 $242,000 $324,000
State and local 316,000 164,000 216,000
Deferred taxes:
Federal 6,000 (20,000) 26,000
State and local 4,000 (13,000) 18,000
-------- --------- --------
$801,000 $ 373,000 $584,000
======== ========= ========
<PAGE>
Note H - Income Taxes (continued)
Temporary differences exist between financial accounting and tax reporting which
result in a net deferred tax asset, included in other assets, as follows:
Year Ended December 31,
-----------------------
1998 1997 1996
---- ---- ----
Debenture underwriting commissions $ 3,000 $ 9,000 $ 19,000
Deferred fees and interest 45,000 49,500 58,000
Discount on mortgages receivable (18,000) (18,500) (70,000)
-------- -------- --------
$ 30,000 $ 40,000 $ 7,000
======== ======== ========
The amounts of income taxes provided varied from the amounts which would be
"expected" to be provided at the statutory federal income tax rates in effect
for the following reasons:
Year Ended December 31,
-----------------------
1998 1997 1996
---- ---- ----
Tax computed based upon the statutory
federal tax rate $ 594,000 $ 278,000 $ 435,000
State and local income tax, net of federal
income tax benefit 213,000 101,000 158,000
Nontaxable income (10,000) (10,000) (9,000)
Other 4,000 4,000
--------- --------- ---------
$ 801,000 $ 373,000 $ 584,000
========= ========= =========
<PAGE>
<TABLE>
<CAPTION>
INTERVEST CORPORATION OF NEW YORK
SCHEDULE IV - MORTGAGE LOANS ON REAL ESTATE
DECEMBER 31, 1998
Effective Actual Final Face Carrying
Interest Interest Maturity Prior Amount of Amount of
Description Rate Rate Date Periodic Payment Terms Liens Mortgages Mortgages
<S> <C> <C> <C> <C> <C> <C> <C>
Commercial First Mortgages:
Office Buildings:
New City, New York 12.25% 6.20% 12/08/10 principal and interest annually $300,000 $139,000
Restaurants:
Manassas, Virginia 12.375 6.50 12/01/05 principal and interest annually 300,000 112,000
Irondequoit, New York 12.50 7.20 12/01/12 principal and interest annually 340,000 187,000
Decatur And Jonesboro, Geo 13.00 8.50 04/01/13 (C) 583,000 365,000
Participation:
Brooksville, Florida 8.25 8.25 10/18/99 900,000 237,000
Residential First Mortgages:
Co-Operative Apartment Buildings:
New York, New York 11.51 11.51 07/31/99 (C) 950,000 913,000
New York, New York 9.00 9.00 11/01/99 (C) 367,000 288,000
Rental Apartment Buildings:
Bronx, New York 11.00 11.00 07/01/06 (C) 895,000 697,000
Bronx, New York 11.00 11.00 11/01/12 (C) 2,445,000 2,131,000
Bronx, New York 12.75 12.75 08/01/12 (C) 900,000 898,000
Bronx, New York 13.75 13.75 01/01/10 (C) 2,850,000 (G) 1,406,000
Bronx, New York 12.75 12.75 01/01/11 (C) 1,175,000 1,111,000
Bronx, New York 12.00 12.00 08/01/10 (C) 1,045,000 944,000
Bronx, New York 12.00 12.00 (A)09/30/99 (C) 670,000 609,000
Bronx, New York 13.25 13.25 06/01/13 (C) 2,000,000 (H) 624,000
Bronx, New York 10.00 10.00 11/01/15 (C) 1,260,000 1,160,000
Brooklyn, New York 14.80 12.50 (B)04/11/99 (C) 1,150,000 473,000
Bronx, New York 12.50 12.50 01/01/10 (C) 1,650,000 (I) 1,039,000
Bronx, New York 12.75 12.75 11/01/11 (C) 1,850,000 1,791,000
New York, New York 11.00 10.00 03/15/10 (C) 1,150,000 980,000
Bronx, New York 13.50 13.50 11/01/13 (C) 4,510,000 (J) 3,504,000
New York, New York 11.00 11.00 03/01/99 (D) 1,100,000 1,100,000
Pine Hill, New Jersey 16.20 14.50 (B)05/01/99 (C) 7,200,000 6,797,000
Philadelphia, Pennsylvania 16.00 14.50 (B)06/12/99 (C) 3,800,000 6,422,000
Passaic, New Jersey 14.32 12.50 (B)11/03/98(K) (C) 925,000 908,000
Yonkers, New York 13.25 11.50 (B)07/07/99 (C) 2,000,000 1,992,000
Passaic, New Jersey 14.13 12.62 (B)07/15/99 (C) 600,000 582,000
New York, New York 11.00 10.10 (B)07/16/99 (C) 2,100,000 2,062,000
New York, New York 16.16 13.78 (B)02/11/00 (C) 1,900,000 2,491,000
Washington, D.C. 11.42 10.68 (B)08/19/99 (C) 5,000,000 4,926,000
Washington, D.C. 13.00 11.50 (B)02/24/99 (C) 1,550,000 1,501,000
St. Petersburg, Florida 11.81 10.50 (B)04/22/00 (C) 810,000 799,000
Greenacres, Florida 11.23 10.67 (B)05/01/00 (C) 2,215,000 2,191,000
Sanford, Florida 11.22 10.66 (B)04/30/00 (C) 1,600,000 1,582,000
Trumbull, Connecticut 12.60 11.68 (B)09/01/99 (C) 1,415,000 1,390,000
Residential First Mortgages,
Rental Apartment Buildings: (Continued)
New York, New York 11.51 10.64 (B)12/18/99 (C) 5,700,000 5,641,000
Opa Locka, Florida 11.67 10.66 (B)10/31/00 (C) 2,975,000 2,920,000
Temple Hills, Maryland 13.00 11.50 (B)11/09/99 (C) 850,000 189,000
Jacksonville, Florida 12.75 11.25 (B)12/01/99 (C) 1,400,000 1,280,000
Bridgeport, Connecticut 10.72 10.14 (B)12/01/00 (C) 850,000 842,000
Ellenville, New York 11.50 11.50 (B)07/10/99 (C) 950,000 830,000
Newark, New Jersey 11.70 10.00 (B)12/30/99 (C) 1,000,000 980,000
Residential Second Mortgages,
Rental Apartment Buildings:
New Rochelle, New York 11.50 11.50 Due on (D) 1,300,000 500,000 500,000
demand
---------- ----------- -----------
$1,300,000 $73,730,000 $67,533,000
========== =========== ===========
</TABLE>
(A) Interest payments are fixed. Interest rate shown is approximate.
(B) Interest at fluctuating rate based on bank prime rate.
(C) Principal and interest monthly.
(D) Interest only, principal at maturity.
(E) No prepayment permitted.
(F) None
(G) $1,250,000 of participation of mortgage was sold in 1998.
(H) $1,250,000 of participation of mortgage was sold in 1998.
(I) $500,000 of participation of mortgage was sold in 1998.
(J) $1,000,000 of participation of mortgage was sold in 1998.
(K) Subsequently paid on 1/29/1999.
(L) The carrying amount of mortgages approximates cost for income tax
purposes.
<PAGE>
INTERVEST CORPORATION OF NEW YORK
SCHEDULE IV - MORTGAGE LOANS ON REAL ESTATE
DECEMBER 31, 1998
Description Prepayment Penalty/Other Fees
Commercial First Mortgages:
Office Buildings:
New City, New York (F)
Restaurants:
Manassas, Virginia 0.5%
Irondequoit, New York 1%
Decatur And Jonesboro, Geo (F)
Participation:
Brooksville, Florida (F)
Residential First Mortgages:
Co-Operative Apartment Buildings:
New York, New York (E)
New York, New York (E)
Rental Apartment Buildings:
Bronx, New York not prepayable until 1/1/2000.
Bronx, New York not prepayable until 2/2003.
Bronx, New York not prepayable until balance under $200,000
2% fee on unpaid balance.
Bronx, New York not prepayable until 2/1/2005.
Bronx, New York (E)
Bronx, New York not prepayable until balance under $200,000
Bronx, New York (F)
Bronx, New York (E)
Bronx, New York not prepayable until 3/1999.
Brooklyn, New York one month's interest
Bronx, New York not prepayable until 10/1/2000
Bronx, New York not prepayable until 1/1/2003.
New York, New York (F)
Bronx, New York (E)
New York, New York (F)
Pine Hill, New Jersey 1% fee.
Philadelphia, Pennsylvania 1% fee.
Passaic, New Jersey one month's interest
Yonkers, New York not prepayable until 5/8/1999, then 1% fee
Passaic, New Jersey one month's interest
New York, New York (E)
New York, New York not prepayable until 11/12/1999, then 0.5% fee
Washington, D.C. not prepayable until 4/19/1999, then 1% fee
Washington, D.C. 1% fee
St. Petersburg, Florida not prepayable until 4/22/1999, then 1.5% fee
Greenacres, Florida not prepayable until 5/1/1999, then 1.5% fee
Sanford, Florida not prepayable until 4/30/1999, then 1.5% fee
Trumbull, Connecticut not prepayable until 3/1/1999, then 1% fee
Residential First Mortgages,
Rental Apartment Buildings: (Continued)
New York, New York not prepayable until 8/18/1999, then 1% fee
Opa Locka, Florida not prepayable until 4/29/2000, then 1% fee
Temple Hills, Maryland not prepayable until 8/9/1999, then 1% fee
Jacksonville, Florida not prepayable until 9/2/1999, then 1% fee
Bridgeport, Connecticut not prepayable until 6/3/2000, then 1% fee
Ellenville, New York (F)
Newark, New Jersey 1% fee
Residential Second Mortgages,
Rental Apartment Buildings:
New Rochelle, New York (F)
(A) Interest payments are fixed. Interest rate shown is approximate.
(B) Interest at fluctuating rate based on bank prime rate.
(C) Principal and interest monthly.
(D) Interest only, principal at maturity.
(E) No prepayment permitted.
(F) None
(G) $1,250,000 of participation of mortgage was sold in 1998.
(H) $1,250,000 of participation of mortgage was sold in 1998.
(I) $500,000 of participation of mortgage was sold in 1998.
(J) $1,000,000 of participation of mortgage was sold in 1998.
(K) Subsequently paid on 1/29/1999.
(L) The carrying amount of mortgages approximates cost for income tax
purposes.
<PAGE>
INTERVEST CORPORATION OF NEW YORK
SCHEDULE IV MORTGAGE LOANS ON REAL ESTATE Continued
The following summary reconciles mortgages receivable at their carrying values:
Year Ended December 31
----------------------
1998 1997 1996
---- ---- ----
Balance at beginning of period $ 74,316,000 $ 69,699,000 $ 55,146,000
Additions during period:
Mortgages acquired 41,494,000 29,431,000 34,774,000
----------- ---------- ----------
115,810,000 99,130,000 89,920,000
Deductions during period:
Collections of principal, net of
Amortization of discounts 48,277,000 24,814,000 20,221,000
----------- ---------- ----------
BALANCE AT CLOSE OF PERIOD $ 67,533,000 $ 74,316,000 $ 69,699,000
=========== ========== ==========
<PAGE>
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None
PART III
Item 10. Directors and Executive Officers of the Registrant
The current directors and executive officers of the Company are as follows:
Lawrence G. Bergman, age 54, serves as a Director, and as Vice President and
Secretary of the Company and has served in such capacities since the Company was
organized. Mr. Bergman received a Bachelor of Science degree and a Master of
Engineering (Electrical) degree from Cornell University, and a Master of Science
in Engineering and a Ph.D degree from The Johns Hopkins University. Mr. Bergman
is also a Director, Vice-President and Secretary of Intervest Bancshares
Corporation, and Co-Chairman of the Board of Directors and a member of the Loan
Committee of Intervest Bank. During the past five years, Mr. Bergman has been
actively involved in the ownership and operation of real estate and mortgages
through certain family-owned entities.
Michael A. Callen, age 58, serves as a Director of the Company, and has served
in such capacity since October, 1992. Mr. Callen received a Bachelor of Arts
degree from the University of Wisconsin in Economics and Russian. Mr. Callen is
Senior Advisor, The National Commercial Bank, Jeddah, Saudi Arabia and prior to
1993 was a Director and Sector Executive at Citicorp/Citibank , responsible for
corporate banking activities in North America, Europe and Japan. Mr. Callen is a
Director of Intervest Bancshares Corporation and a Director of AMBAC, Inc.
Jean Dansker, age 77, serves as Vice President of the Company and has served in
such capacity since June, 1996. Mrs. Dansker received a Bachelor of Arts degree
from Brooklyn College in Economics. Mrs. Dansker has been an active investor in
real estate and mortgages for more than five years.
Jerome Dansker, age 80, serves as a Director and as Executive Vice President of
the Company, and has served in such capacity since November, 1993. Mr. Dansker
became Chairman of the Board of Directors in June, 1996. Mr. Dansker received a
Bachelor of Science degree from the New York University School of Commerce,
Accounts and Finance, a law degree from the New York University School of Law,
and is admitted to practice as an attorney in the State of New York. Mr. Dansker
is a Director, Chairman of the Board and Executive Vice President of Intervest
Bancshares Corporation. He is also a Director and Chairman of the Loan Committee
of Intervest Bank. During the past five years, Mr. Dansker has been actively
involved in the ownership and operation of real estate and mortgages through
certain family-owned entities.
Lowell S. Dansker, age 48, serves as a Director, and as President and Treasurer
of the Company, and has served in such capacities since the Company was
organized. Mr. Dansker received a Bachelor of Science in Business Administration
from Babson College, a law degree from the University of Akron School of Law,
and is admitted to practice as an attorney in New York, Ohio, Florida and the
District of Columbia. Mr. Dansker is also a Director, President and Treasurer of
Intervest Bancshares Corporation, an affiliated bank holding company and
Co-Chairman of the Board of Directors and a member of the Loan Committee of
Intervest Bank, a Florida state-chartered bank which is majority owned by
Intervest Bancshares Corporation. During the past five years, Mr. Dansker has
been actively involved in the ownership and operation of real estate and
mortgages through certain family-owned entities.
Milton F. Gidge, age 69, serves as a Director of the Company, and has served in
such capacity since December, 1988. Mr. Gidge received a Bachelor of Business
Administration degree in Accounting from Adelphi University and a Masters Degree
in Banking and Finance from New York University. Mr. Gidge retired in 1994 and,
prior to his retirment, was a Director and Chairman-Credit Policy of Lincoln
Savings Bank, F.S.B. (headquartered in New York City). He is also a Director of
Intervest Bancshares Corporation, Interboro Mutual Indemnity Insurance Company
and Vicon Industries, Inc. Mr. Gidge was an officer of Lincoln Savings Bank,
F.S.B. for more than five years.
<PAGE>
William F. Holly, age 70, serves as a Director of the Company and has served in
such capacity since December, 1990. Mr. Holly received a Bachelor of Arts degree
in Economics from Alfred University. Mr. Holly is Chairman of the Board and
Chief Executive Officer of Sage, Rutty & Co., Inc., members of the Boston Stock
Exchange, with offices in Rochester, New York and Canandaigua, New York, and is
also a Director of Intervest Bancshares Corporation and a Trustee of Alfred
University. Mr. Holly has been an officer and director of Sage, Rutty & Co.,
Inc. for more than five years.
Edward J. Merz, age 67, serves as a Director of the Company and has served in
such capacity since February, 1998. Mr. Merz received a Bachelor of Business
Administration from City College of New York and is a graduate of the Stonier
School of Banking at Rutgers University. Mr. Merz is Chairman of the Board of
Directors of the Suffolk County National Bank of Riverhead and of its parent,
Suffolk Bancorp. and has been an officer and director of those companies for
more than five years. He is also a director of the Independent Bankers
Association of New York and a director of Intervest Bancshares Corporation.
Thomas E. Willett, age 51, serves as a Director of the Company, and has served
in such capacity since March, 1999. Mr. Willett received a Bachelor of Science
Degree from the United States Air Force Academy and a law degree from Cornell
University School of Law. Mr. Willett has been a partner of Harris Beach &
Wilcox, LLP., a law firm in Rochester, New York, for more than five years and a
director of Intervest Bancshares Corporation.
David J. Willmott, age 60, serves as a Director of the Company, and has served
in such capacity since June, 1989. Mr. Willmott is a graduate of Becker Junior
College and attended New York University Extension and Long Island University
Extension of Southampton College. Mr. Willmott is the Editor and Publisher of
Suffolk Life Newspapers, which he founded more than 25 years ago. Mr. Willmott
is also a Director of Intervest Bancshares Corporation.
Wesley T. Wood, age 56, serves as a Director of the Company, and has served in
such capacity since April, 1992. Mr. Wood received a Bachelor of Science degree
from New York University, School of Commerce. Mr. Wood is President of Marketing
Capital Corporation, an international marketing consulting and investment firm
which he founded in 1973. He is also a Director of Intervest Bancshares
Corporation, a Director of the Center of Direct Marketing at New York
University, a member of the Marketing Committee at Fairfield University in
Connecticut, and a Trustee of St. Dominics in Oyster Bay, New York.
All of the directors of the Company have been elected to serve as directors
until the next annual meeting of the Company's shareholders. Each of the
officers of the Company has been elected to serve as an officer until the next
annual meeting of the Company's directors.
Mr. Bergman's wife is the sister of Lowell S. Dansker and Jerome Dansker is the
father of Lowell S. Dansker and Mrs. Bergman. Jean Dansker is the wife of Jerome
Dansker and the mother of Lowell S. Dansker and Mrs. Bergman.
Item 11. Executive Compensation
Prior to July 1, 1995, no compensation was paid to or accrued by the Company for
any executive officer or director of the Company (other than fees paid to
directors for attending Board meetings). Each of the directors receives a fee of
$250 for each meeting of the Board of Directors he attends. Effective as of July
1, 1995, the Company entered into an employment agreement with Mr. Jerome
Dansker, its Executive vice President. The agreement is for a term of ten years
and provides for the payment of an annual salary in the present amount of
$148,877, which is subject to increase annually by six percent or by the
percentage increase in the consumer price index, if higher. The agreement also
provides for monthly expense account payments, the use of a car and medical
benefits. In the event of Mr. Dansker's death or disability, monthly payments of
one-half of the amount which otherwise would have been paid to Mr. Dansker will
continue until the greater of (i) the balance of the term of employment, and
(ii) three years. Effective August 3, 1998, the Company modified the employment
agreement to provide for additional compensation of $1,000 per month for each
$10,000,000 of gross assets of the Company in excess of $100,000,000. During
1998, Mr. Dansker received aggregate cash compensation of $252,739.
<PAGE>
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth, as of February 28, 1999, information concerning
the ownership of the outstanding stock of the Company, all of which is
beneficially owned by the four individuals listed below:
<TABLE>
<CAPTION>
Name and Address of Beneficial Owner Common Stock Class B Stock
- ------------------------------------ ------------ -------------
Number of Percent of Number of Percent of
Shares Class Shares Class
------ ----- ------ -----
<S> <C> <C> <C> <C>
Lowell S. Dansker............... 15.92 (1) 50.0%
10 Rockefeller Plaza, Suite 1015
New York, New York 10020
Lawrence G. Bergman............. 3.79 11.9%
10 Rockefeller Plaza, Suite 1015
New York, New York 10020
Helene D. Bergman............... 12.13 (2) 38.1%
201 East 62nd Street,
New York, New York 10021
Jerome Dansker.................. 15.89 100%
10 Rockefeller Plaza, Suite 1015
New York, New York 10020
Total Outstanding............... 31.84 shares 100.0% 15.89 100%
</TABLE>
(1) Of the 15.92 shares beneficially owned by Mr. Dansker, 0.40 shares are
owned by Mr. Dansker as custodian for his two children under the
Uniform Gifts to Minors Act of the State of New York.
(2) Of the 12.13 shares beneficially owned by Mrs. Bergman, 0.40 shares are
owned by her as custodian for her two children under the Uniform Gifts
to Minors Act of the State of New York.
Item 13. Certain Relationships and Related Transactions
An annual mortgage servicing fee which is based on certain percentage of the
face amount of mortgages receivable is paid by the Company monthly to Capital
Holding Company, an affiliate of the Company. The services provided to the
Company by Capital Holding Company in consideration for such mortgage servicing
fee include (i) the collection of mortgages receivable, (ii) the payment of
mortgages payable, (iii) the payment of property taxes for the mortgaged
premises after receipt of such tax payments from mortgagors and (iv) the payment
of property insurance premiums for the mortgaged properties after receipt of
such insurance payments from mortgagors. For the fiscal year ended December 31,
1998, the amount of the mortgage servicing fee paid by the Company was $295,000.
Mr. William F. Holly, who is a director of the Company, also serves as Chairman
of the Board and Chief Executive Officer of Sage, Rutty & Co., Inc., which firm
has acted as an underwriter in connection with the Company's offerings of
debentures, including the offering of debentures conducted during fiscal 1997.
Intervest Securities Corporation, an affiliate of the Company, acted as the
placement agent in the Company's 1998 private placement of subordinated
debentures and received commissions and fees aggregating $258,300 in connection
therewith.
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a) (1) Financial Statements:
See Item 8 "Financial Statements and Supplementary Data"
(a) (2) Financial Statement Schedules: IV - Mortgage Loans on Real Estate
All other schedules have been omitted because they are
inapplicable, not required, or the information is included in the
Financial Statements or Notes thereto.
(a) (3) Exhibits:
3.1 Certificate of Incorporation of the Company, incorporated by
reference to Registrant's Registration Statement on Form S-1B (File
No. 33-27404-NY), declared effective May 12, 1989.
3.2 Certificate of Amendment to Certificate of Incorporation dated
August 17, 1998.
3.3 By-laws of the Company, incorporated by reference to the Company's
Registration Statement on Form S-11 (File No. 33-39971), declared
effective on May 13, 1991.
4.1 Form of Indenture between the Company and First American Bank of
Georgia, as trustee, dated as of April 15, 1990, incorporated by
reference to the Company's Registration Statement on Form S-11 (No.
33-33500), declared effective on March 28, 1990.
4.2 Form of Indenture between the Company and First American Bank of
Georgia, as trustee, dated as of June 1, 1991, incorporated by
reference to the Company's Registration Statement on Form S-11 (No.
33-39971), declared effective on May 13, 1991.
4.3 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of March 1, 1992, incorporated by reference to
the Company's Registration Statement on Form S-11 (File No.
33-44085), declared effective on February 20, 1992.
4.4 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of July 1, 1992, incorporated by reference to the
Company's Registration Statement on Form S-11 (File No. 33-47801),
declared effective on June 29, 1992.
4.5 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of September, 15, 1993, incorporated by reference
to the Company's Registration Statement on Form S-11 (File No.
33-65812), declared effective on September 13, 1993.
4.6 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of February 1, 1994, incorporated by reference to
the Company's Registration Statement on Form S-11 (File No.
33-73108), declared effective on January 28, 1994.
4.7 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of November 1, 1994, incorporated by reference to
the Company's Registration Statement on Form-S11 (File No.
33-84812), declared effective on October 28, 1994.
4.8 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of June 1, 1995, incorporated by reference to the
Company's Registration Statement on Form-S11 (File No. 33-90596)
declared effective on May 12, 1995.
4.9 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of November 1, 1995, incorporated by reference to
the Company's Registration Statement on Form S-11 (File No.
33-96662), declared effective on October 19, 1995.
<PAGE>
4.10 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of June 1, 1996, incorporated by reference to the
Company's Registration Statement on Form S-11 (File No. 333-2459),
declared effective on May 10, 1996.
4.11 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of November 1, 1996, incorporated by reference to
the Company's Registration Statement on Form S-11 (File No.
333-11413), declared effective on October 15, 1996.
4.12 Form of Indenture between the Company and The Bank of New York, as
trustee, dated as of May 1, 1997, incorporated by reference to the
Company's Registration Statement on Form S-11 (File No. 333-23093),
declared effective on April 30, 1997.
4.13 Indenture between the Company and the Bank of New York, as Trustee,
dated December 1, 1998.
4.14 Agreements of Resignation, Appointment and Acceptance dated as of
April 30, 1992, by and among the Company, First American Bank of
Georgia, N.A. and The Bank of New York, incorporated by reference
to the Company's annual report on Form 10K for the year ended
December 31, 1992 wherein such documents were filed as exhibit 4.8.
10.0 Employment Agreement between the Company and Jerome Dansker dated
as of July 1, 1995, incorporated by reference to the Company's
Registration Statement on Form S-11 (File #33- 96662), declared
effective on October 19, 1995.
10.1 Amendment to Employment Agreement between the Company and Jerome
Dansker dated August 3, 1998.
22. List of Subsidiaries.
27. Financial Data Schedule
(b) No reports on Form 8-K were filed during the last quarter of the period
covered by this report.
<PAGE>
SIGNATURES
PURSUANT to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
INTERVEST CORPORATION OF NEW YORK
Dated: March , 1999 By: /S/ Lowell S. Dansker
---------------------
Lowell S. Dansker, President
PURSUANT to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
Signatures
President
(Principal Executive Officer),
/S/ Lowell S. Dansker Treasurer (Principal Financial
- --------------------- Officer and Principal Accounting
Lowell S. Dansker Officer) and Director
Dated: March , 1999
/S/ Lawrence G. Bergman Vice President
- ----------------------- Secretary and Director
Lawrence G. Bergman
Dated: March , 1999
- ----------------------- Director
Michael A. Callen
Dated: March , 1999
/S/ Jerome Dansker Director, Executive Vice President
- ------------------
Jerome Dansker
Dated: March , 1999
Director
- -----------------------
Milton F. Gidge
Dated: March , 1999
/S/ William F. Holly Director
- --------------------
William F. Holly
Dated: March , 1999
- ---------------------- Director
Edward J. Merz
Dated: March , 1999
/S/ Thomas E. Willett Director
- ---------------------
Thomas E. Willett
Dated: March , 1999
Director
- ------------------------
David J. Willmott
Dated: March , 1999
/S/ Wesley T. Wood Director
- ------------------
Wesley T. Wood
Dated: March , 1999
<PAGE>
Supplemental Information to be Furnished with Reports Filled Pursuant to Section
15(d) of the Act by Registrants Which Have Not Registered Securities Pursuant to
Section 12 of the Act:
Registrant does not solicit proxies or proxy statements to holders of its
securities. The annual report to holders of its Debentures has not as yet been
distributed.
When the annual report has been distributed to the holders of Debentures, four
copies will be sent to the Commission.
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
INTERVEST CORPORATION OF NEW YORK
Under Section 805 of the Business Corporation Law
The undersigned, being the President and Secretary of Intervest Corporation
of New York, do hereby certify:
FIRST: The name of the corporation is Intervest Corporation of New York.
The name under which the corporation was formed is Multivest Corporation of New
York.
SECOND: The Certificate of Incorporation was filed by the Department of
State on April 15, 1987.
THIRD: The Certificate of Incorporation, as heretofore amended, is hereby
further amended to create a new class of Class B Stock, consisting of 100 shares
without par value. To accomplish that amendment, Article Fourth of the
Certificate of Incorporation is hereby restated in its entirety to read as
follows:
"FOURTH: The aggregate number of shares of all classes of stock which the
corporation shall have authority to issue is 300, which shall be classified so
that 200 shares without par value shall be shares of Common Stock and 100 shares
without par value shall be shares of Class B Stock. A statement of the
designations and the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, of the shares of stock of each class which
the corporation shall be authorized to issue, is as follows:
(a) Dividends. The holders of the shares of Common Stock shall be entitled
to receive cash dividends when and as declared by the Board of Directors out of
funds legally available therefor. The holders of the shares of Class B Stock
shall not be entitled to receive any cash dividends other than liquidating
dividends, until the expiration of 5 years after the date of issuance, after
which time all distributions, whether as a dividend or otherwise, shall be made
ratably to the holders of shares of Common Stock and Class B Stock without
distinction as to class.
(b) Liquidation. In the event of the dissolution, liquidation or winding-up
of the corporation, whether voluntary or involuntary, or in the event of its
insolvency, there shall be paid to the holders of the Common Stock the sum of
$346,000 per share, and the amount of all unpaid declared dividends thereon,
before any sum shall be paid or any assets distributed among the holders of the
Class B Stock (if the assets of the corporation shall be insufficient to permit
the payment in full to the holders of shares of Common Stock of the amount thus
distributable, then the entire assets of the corporation shall be distributed
ratably among the holders of the Common Stock); then the entire remaining assets
of the corporation shall be distributed ratably among the holders of Common
Stock and Class B Stock, share and share alike, and in proportion to their
holdings.
<PAGE>
(c) Merger or Change of Control. In the case of any consolidation or merger
of the corporation with or into another corporation, or in the case of any sale
or conveyance to another corporation of the property of the corporation as an
entirety or substantially as an entirety, then all distributions made in
connection with such transaction shall be made ratably to the holders of the
shares of Common Stock and Class B Stock without distinction as to class.
(d) Voting. Except as otherwise expressly required by law, in all matters
as to which the vote or consent of stockholders of the corporation shall be
required or be taken, including any increase or decrease in the amount of
authorized capital stock of the corporation, the respective holders of the
shares of Common Stock and the shares of Class B Stock, voting together and
without distinction as to class, shall each be entitled to one vote for each
share of such stock held by them, respectively.
(e) Restrictions on Transfer. Shares of Class B Stock shall not be sold,
assigned, or otherwise transferred, except to another shareholder of the
corporation or except as designated by the holder by will or by the laws of
descent and distribution.
(f) Conversion. At any time after the issuance or sale thereof, the
corporation may cause the holders of record of shares of Class B Stock to
convert each such share into a share of Common Stock, at the exchange rate of
one share of Common Stock for each share of Class B Stock."
FOURTH: The foregoing amendment was authorized by the Board of Directors,
followed by the approval of the shareholders by unanimous written consent.
IN WITNESS WHEREOF, the undersigned affirm that the statements made herein
are true under penalties of perjury this 17th day of August, 1998.
-----------------------------------
Lowell S. Dansker, President
-----------------------------------
Lawrence G. Bergman, Secretary
=========================================================
INTERVEST CORPORATION OF NEW YORK
AND
THE BANK OF NEW YORK
as Trustee
INDENTURE
Dated as of December 1, 1998
$5,400,000
Series 11/10/98 Debentures
$1,400,000 Due January 1, 2001
$1,400,000 Due January 1, 2003
$2,600,000 Due January 1, 2005
=========================================================
<PAGE>
CROSS REFERENCE TABLE
TIA Section Indenture Section
- ----------- -----------------
310(a)(1) and (2).......................... 7.10
310(a)(3) and (4).......................... N.A.
310(b)....................................... 7.08, 7.10, 11.02
310(c)....................................... N.A.
311(a) and (b)............................. 7.11
311(c)....................................... N.A.
312(a)....................................... 2.05
312(b) and (c)............................. 2.06
313(a)....................................... 7.06
313(b)(1)................................... N.A.
313(b)(2)................................... 7.06
313(c)....................................... 7.06, 11.02
313(d)....................................... 7.06
314(a)....................................... 4.02, 11.02
314(b)....................................... N.A.
314(c)(1) and (c)(2)....................... 11.03
314(c)(3) and (d).......................... N.A.
314(e)....................................... 11.04
314(f)....................................... N.A.
315(a), (c) and (d)........................ 7.01
315(b)....................................... 7.05, 11.02
315(e)....................................... 6.11
316(a)(1)(A)............................... 6.05
316(a)(1)(B)................................ 6.04
316(a)(2).................................... 9.02
316(a) Last Paragraph................... 2.10, 11.05
316(b)....................................... 6.07
317(a)....................................... 6.08, 6.09
317(b)....................................... 2.04
318(a)....................................... 11.01
N.A. means Not Applicable.
Note: This cross reference table shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
1.01. Definitions.. . . . . . . . . . . . . . . . . . . . . . 1
1.02. Other Definitions . . . . . . . . . . . . . . . . . . . 3
1.03. Incorporation by Reference of Trust Indenture Act-. . . 3
1.04. Acts of Holders . . . . . . . . . . . . . . . . . . . . 3
1.05. Rules of Construction . . . . . . . . . . . . . . . . . 4
ARTICLE TWO
THE DEBENTURES
--------------
2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . 5
2.02. Execution and Authentication. . . . . . . . . . . . . . 5
2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . 6
2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . 6
2.05. Debentureholder Lists . . . . . . . . . . . . . . . . . 6
2.06. Access of Information to Debentureholders. . . . . . . 7
2.07. Transfer and Exchange . . . . . . . . . . . . . . . . . 7
2.08. Replacement Debentures. . . . . . . . . . . . . . . . . 8
2.09. Outstanding Debentures. . . . . . . . . . . . . . . . . 8
2.10. Treasury Debentures . . . . . . . . . . . . . . . . . . 8
2.11. Temporary Debentures. . . . . . . . . . . . . . . . . . 8
2.12. Cancellation. . . . . . . . . . . . . . . . . . . . . . 9
2.13. Defaulted Interest. . . . . . . . . . . . . . . . . . . 9
2.14. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . 9
<PAGE>
ARTICLE THREE
REDEMPTION
----------
3.01. Notices to Trustee. . . . . . . . . . . . . . . . . . . 9
3.02. Selection of Debentures to be Redeemed. . . . . . . . 10
3.03. Notice of Redemption. . . . . . . . . . . . . . . . . 10
3.04. Effect of Notice of Redemption. . . . . . . . . . . . . 10
3.05. Deposit of Redemption Price . . . . . . . . . . . . . . 10
3.06. Debentures Redeemed in Part . . . . . . . . . . . . . . 10
3.07. Repurchase at Option of Holder. . . . . . . . . . . . . 11
ARTICLE FOUR
COVENANTS
---------
4.01. Payment of Debentures . . . . . . . . . . . . . . . . . 11
4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . 11
4.03. Compliance Certificate. . . . . . . . . . . . . . . . . 12
4.04. Limitation on Dividends and Stock Purchases . . . . . . 12
4.05. Pari Passu and Other Indebtedness . . . . . . . . . . . 12
ARTICLE FIVE
SUCCESSOR CORPORATION
---------------------
5.01. When the Company May Merge, etc.. . . . . . . . . . . . 13
<PAGE>
ARTICLE SIX
DEFAULTS AND REMEDIES
---------------------
6.01. Events of Default . . . . . . . . . . . . . . . . . . . 14
6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . 14
6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . 15
6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . 15
6.05. Control by Majority . . . . . . . . . . . . . . . . . . 15
6.06. Limitation of Suits . . . . . . . . . . . . . . . . . . 16
6.07. Rights of Holders to Receive Payment. . . . . . . . . . 16
6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . 16
6.09. Trustee May File Proof of Claim . . . . . . . . . . . . 16
6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . 16
6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . 17
ARTICLE SEVEN
TRUSTEE
-------
7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . 18
7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . 18
7.03. Individual Rights of Trustee. . . . . . . . . . . . . . 19
7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . 19
7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . 20
7.06. Reports by Trustees to Holders. . . . . . . . . . . . . 20
7.07. Compensation and Indemnity. . . . . . . . . . . . . . . 20
7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . 21
7.09. Successor Trustee by Merger, etc. . . . . . . . . . . . 21
7.10. Eligibility; Disqualification . . . . . . . . . . . . . 22
7.11. Preferential Collection of Claims Against the Company . 22
7.12. Paying Agents . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE EIGHT
DISCHARGE OF INDENTURE
----------------------
8.01. Termination of the Company's Obligations. . . . . . . . 23
8.02. Application of Trust Money. . . . . . . . . . . . . . . 24
8.03. Repayment to the Company. . . . . . . . . . . . . . . . 24
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
9.01. Without Consent of Holders. . . . . . . . . . . . . . . 24
9.02. With Consent of Holders . . . . . . . . . . . . . . . . 24
9.03. Execution of Supplemental Indentures. . . . . . . . . . 25
9.04. Compliance with Trust Indenture Act . . . . . . . . . . 25
9.05. Revocation and Effect of Consents . . . . . . . . . . . 25
9.06. Notation on or Exchange of Debentures . . . . . . . . . 26
9.07. Trustee to Sign Amendments, etc . . . . . . . . . . . . 26
<PAGE>
ARTICLE TEN
SUBORDINATION
-------------
10.01. Agreement to Subordinate . . . . . . . . . . . . . . . 26
10.02. Debentures Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization
of the Company. . . . . . . . . . . . . . . . . . . . .27
10.03. Debentureholders to be Subrogated to Rights of Holders
of Senior Indebtedness . . . . . . . . . . . . . . . . 28
10.04. Obligation of the Company Unconditional. . . . . . . . 28
10.05. Knowledge of Trustee . . . . . . . . . . . . . . . . . 29
10.06. Application by Trustee of Monies Deposited With It . . 29
10.07. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . 29
10.08. Debentureholders Authorize Trustee to Effectuate
Subordination of Debentures . . . . . . . . . . . . . .30
10.09. Right of Trustee to Hold Senior Indebtedness . . . . . 30
10.10. Article Ten Not to Prevent Events of Default . . . . . 30
10.11. No Fiduciary Duty Created to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . 30
10.12. Trustee's Compensation Not Prejudiced. . . . . . . . . 30
ARTICLE ELEVEN
MISCELLANEOUS
-------------
11.01. Trust Indenture Act Controls . . . . . . . . . . . . . 30
11.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . 30
11.03. Certificate and Opinion as to Conditions Precedent . . 31
11.04. Statements Required in Certificate or Opinion. . . . . 31
11.05. Rules by Trustee and Agents. . . . . . . . . . . . . . 32
11.06. Legal Holidays . . . . . . . . . . . . . . . . . . . . 32
11.07. Governing Law. . . . . . . . . . . . . . . . . . . . . 32
11.08. No Recourse Against Others . . . . . . . . . . . . . . 32
11.09. Successors . . . . . . . . . . . . . . . . . . . . . . 32
11.10. Duplicate Originals. . . . . . . . . . . . . . . . . . 32
11.11. Separability . . . . . . . . . . . . . . . . . . . . . 33
<PAGE>
INDENTURE, dated as of December 1, 1998, between INTERVEST CORPORATION OF
NEW YORK, a New York corporation (the "Company"), and THE BANK OF NEW YORK, a
New York banking corporation, as trustee (the "Trustee").
Intending to be legally bound hereby, each party agrees as follows for the
benefit of the other party and for the equal and ratable benefit of the Holders
of the Company's Series 11/10/98 Debentures.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Subsidiary. For purposes of this definition, "control" when used with respect to
any person means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Board of Directors" means the Board of Directors of the Company or any
committee of that Board duly authorized to act for it hereunder.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the applicable provisions hereof and thereafter means
any such successor.
"Debentures" means: the Series 11/10/98 Debentures, issued under this
Indenture, in three maturities as follows: January 1, 2001, January 1, 2003 and
January 1, 2005: as amended or supplemented from time to time pursuant to the
terms of this Indenture; "Debenture" means any one of such Debentures.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Holder" or "Debentureholder" means the person in whose name a Debenture is
registered on the Registrar's books.
<PAGE>
"Indebtedness" means, with respect to any person: (i)(A) all indebtedness
of such person for borrowed money, (B) all indebtedness of such person which is
evidenced by a note, debenture, bond or other similar instrument (including
capitalized lease and purchase money obligations), and (C) all indebtedness
(including capitalized lease obligations) incurred, assumed or given in the
acquisition (whether by way of purchase, merger or otherwise) of any business,
real property or other assets (except assets acquired in the ordinary course of
the acquiror's business); (ii) any indebtedness of others described in the
preceding clause (i) which such person has guaranteed or for which it is
otherwise liable; and (iii) any amendment, renewal, extension or refunding of
any indebtedness referred to in clauses (i) and (ii) above.
"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.
"Maturity" means either of the two maturities of Debentures issued under
this Indenture.
"Officer" means the Chairman or co-Chairman of the Board, the Vice Chairman
of the Board, the President, any Vice President, the Treasurer or the Secretary
of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who may be
counsel for the Company or other counsel who is acceptable to the Trustee.
"person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"principal" of a debt security means the principal of the security plus the
premium, if any, on the security.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
business.
"SEC" means the Securities and Exchange Commission.
"Subsidiary" means a corporation, a majority of whose voting stock is owned
by the Company or a Subsidiary. Voting stock is Capital Stock having voting
power under ordinary circumstances to elect directors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code subsection
77aaa-77bbbb) as in effect on the date this Indenture was executed, except as
provided in Section 9.04.
<PAGE>
"Trustee" means the party named as such in this Indenture until a successor
replaces it and thereafter means the successor.
"United States" means the United State of America.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 11.06
"Paying Agent" 2.03
"Registrar" 2.03
"Restricted Payments" 4.04
"Senior Indebtedness" 10.01
"U.S. Government Obligations" 8.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Debentures.
"indenture security holder" means a Debentureholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rules have the
meanings assigned to them.
<PAGE>
SECTION 1.04. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by 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 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 conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of 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 ownership of Debentures shall be proved by the registration of the
books of the Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debenture shall bind every future Holder of
the same Debenture and the Holder of every Debenture 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 Debenture.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Debentures have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Debentures shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
SECTION 1.05. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it; (ii) an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally accepted
accounting principles; (iii) "or" is not exclusive; and (iv) words in the
singular include the plural, and words in the plural include the singular.
<PAGE>
ARTICLE TWO
THE DEBENTURES
--------------
SECTION 2.01. Form and Dating. The Debentures and the Trustee's certificate
of authentication shall be substantially in the forms set forth in Exhibits A, B
and C which are incorporated in and form a part of this Indenture. The
Debentures may have notations, legends or endorsements required by law,
securities exchange rule or usage. The Company shall approve the form of the
Debentures and any notation, legend or endorsement on them and its execution
shall constitute conclusive evidence of its approval. Each Debenture shall be
dated the date of its authentication. The terms and provisions contained in the
forms of Debenture annexed hereto as Exhibits A, B and C shall constitute, and
are hereby expressly made, a part of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers shall execute the
Debentures for the Company by manual or facsimile signature. The Company's seal
shall be affixed or reproduced on the Debentures.
If an Officer whose signature is on a Debenture no longer holds that office
at the time the Registrar, as hereinafter defined, authenticates the Debenture,
the Debenture shall be valid nevertheless.
A Debenture shall not be valid until the Registrar manually signs the
certificate of authentication on the Debenture. The signature shall be
conclusive evidence that the Debenture has been authenticated under this
Indenture.
The Registrar shall authenticate Debentures for original issue in the
aggregate principal amount of up to $5,400,000 (but not more than: $1,400,000 of
Debentures maturing January 1, 2001; $1,400,000 of Debentures maturing January
1, 2003; or $2,600,000 of Debentures maturing January 1, 2005) upon a written
order of the Company signed by two Officers or by an Officer and an Assistant
Treasurer of the Company. The order shall specify the amount and Maturity of
Debentures to be authenticated, whether interest on the Debentures will accrue
or will be paid quarterly, and the date on which the original issue of
Debentures is to be authenticated. The aggregate principal amount of Debentures
outstanding at any time may not exceed the amount set forth above except as
provided in Sections 2.08 and 2.09.
The Registrar may appoint an authenticating agent acceptable to the Company
to authenticate Debentures. Unless limited by the terms of said appointment, an
authenticating agent may authenticate Debentures whenever the Registrar may do
so. Each reference in this Indenture to authentication by the Registrar includes
authentication by such authenticating agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
<PAGE>
The Debentures shall be issuable only in registered form without coupons
and only in denominations of $10,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an
office or agency where Debentures may be presented for registration of transfer
or for exchange ("Registrar") and an office or agency where Debentures may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Debentures and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional Paying Agents. The term "Paying
Agent" includes any additional paying agent. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent and shall incorporate the provisions of
the TIA. The Company shall notify the Trustee of the name and address of any
such Agent. If the Company fails to maintain a Registrar or Paying Agent, upon
notification and delivery of necessary records, the Trustee shall act as such
and shall be entitled to appropriate compensation in accordance with the
provisions of Section 7.07.
The Company initially appoints THE BANK OF NEW YORK, a New York banking
corporation, as Registrar and the Company shall act as Paying Agent.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent to agree in writing to hold in trust for the benefit
of the Debentureholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Debentures, and the Company and
the Paying Agent shall each notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate the money and
hold it as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon such payment to the
Trustee the Paying Agent shall have no further liability for the money delivered
to the Trustee.
SECTION 2.05. Debentureholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Debentureholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least every six months
and at such other times as the Trustee may request in writing, a list, in such
form and as of such date as the Trustee may reasonably require, of the names and
addresses of Debentureholders.
SECTION 2.06. Access of Information to Debentureholders. Within five
business days after the receipt by the Trustee of a written application by any
three or more Debentureholders stating that the applicants desire to communicate
with other Debentureholders with respect to their rights under the Indenture or
under the Debentures, and accompanied by a form of proxy or other communication
which such applicants proposed to transmit, and by reasonable proof that each
such applicant has owned a Debenture for a period of at least six months
preceding the date of such application, the Trustee shall, at its election,
either:
<PAGE>
(a) afford to such applicants access to all information in the
possession of the Trustee as to the names and addresses of the Debentureholders;
or
(b) inform such applicants as to the approximate number of
Debentureholders according to the most recent information so furnished or
received by the Trustee, and as to the approximate cost of mailing to such
Debentureholders 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 all the Debentureholders copies of the form of proxy or other
communication which is specified in the 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 such mailing, unless
within five days after such tender, the Trustee shall mail to such applicants,
and file with the SEC 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 interests of the Debentureholders or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312.
SECTION 2.07. Transfer and Exchange.
(a) The Debentures have not been registered under the Securities Act of
1933, as amended (the "Act") or under any applicable state securities law and
may not be transferred, sold or otherwise disposed of in the absence of
effective registration under the Act or an opinion of counsel reasonably
satisfactory to the Company that such registration is not required under the Act
and the rules and regulations promulgated thereunder or such state securities
law. The Debentures may contain a legend setting forth these restrictions on
transfer.
(b) Where a Debenture is presented to the Registrar or a co-Registrar with
a request to register a transfer, the Registrar shall register the transfer as
requested if its requirements for such transaction are met. Where Debentures of
one Maturity are presented to the Registrar or a co- Registrar with a request to
exchange them for an equal principal amount of Debentures of other denominations
of the same Maturity, the Registrar shall make the exchange as requested if its
requirements for such transaction are met. Debentures containing a particular
CUSIP Number may not be exchanged for Debentures containing another CUSIP
Number. To permit transfers and exchanges, upon surrender of any Debenture for
registration of transfer at the office or agency maintained pursuant to Section
2.03, the Company shall execute and the Registrar shall authenticate Debentures
to be issued upon transfer or exchange. If so requested by the Registrar, all
Debentures presented for exchange, registration of transfer, redemption or
payment shall be accompanied by a written instrument of transfer in form
satisfactory to the Registrar, duly executed by the registered owner or by his
attorney duly authorized in writing. Any exchange or transfer shall be without
charge to the Debentureholder, except that the Company may require payment from
the Debentureholder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. The Registrar shall not transfer
or exchange any Debenture or portion of a Debenture selected for redemption, or
transfer or exchange any Debentures for a period of 15 days before a selection
of Debentures to be redeemed.
<PAGE>
SECTION 2.08. Replacement Debentures. If a mutilated Debenture is
surrendered to the Registrar or if the Holder of a Debenture claims that the
Debenture has been lost, destroyed or wrongfully taken, the Company shall issue
and the Registrar shall authenticate a replacement Debenture if the requirements
of the Company or the Registrar for such transaction are met. The Registrar may
require an indemnity bond which shall be sufficient in the judgment of the
Registrar and the Company to protect the Company, the Trustee, the Registrar,
any Agent or any authenticating agent from any loss which any of them may suffer
if a Debenture is replaced, destroyed, lost or wrongfully taken. The Company may
charge such Holder for its expenses in replacing such Debenture. Every
replacement Debenture is an additional obligation of the Company.
SECTION 2.09. Outstanding Debentures. Debentures outstanding at any time
are all Debentures authenticated by the Registrar except for those canceled by
it, those delivered to it for cancellation, and those described in this Section
2.09. A Debenture does not cease to be outstanding because the Company or one of
its Subsidiaries holds the Debenture.
If a Debenture is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee or the Registrar receives proof satisfactory to
it that the replaced Debenture is held by a bona fide purchaser.
If the Paying Agent (other than the Company or a Subsidiary) holds on a
redemption date or maturity date money sufficient to pay Debentures payable on
that date, then on and after that date such Debentures shall be deemed to be no
longer outstanding and interest on them shall cease to accrue.
SECTION 2.10. Treasury Debentures. In determining whether the Holders of
the required amount of Debentures have concurred in any direction, waiver or
consent, and for the purpose of calculating and making payments of interest and
selecting Debentures for redemption, Debentures owned by the Company or an
Affiliate shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any direction, waiver or
consent, only Debentures the Trustee actually knows are so owned shall be so
disregarded.
SECTION 2.11. Temporary Debentures. Until definitive Debentures are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Debentures. Temporary Debentures shall be substantially in the form of
definitive Debentures but may have variations that the Company considers
appropriate for temporary Debentures. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Debentures in
exchange for temporary Debentures. Until such exchange, temporary Debentures
shall be entitled to the same rights, benefits and privileges as definitive
Debentures.
<PAGE>
SECTION 2.12. Cancellation. The Company at any time may deliver Debentures
to the Trustee or the Registrar for cancellation. The Registrar and Paying Agent
shall forward to the Trustee any Debentures surrendered to them for transfer,
exchange or payment. The Trustee or the Registrar and no one else shall cancel
and may destroy any Debentures surrendered for transfer, exchange, payment or
cancellation and deliver a certificate of any such destruction to the Company
unless the Company instructs the Trustee or the Registrar in writing to deliver
the Debentures to the Company. The Company may not issue new Debentures to
replace, or reissue or recall Debentures that it has (i) paid or redeemed or
(ii) purchased or otherwise acquired and delivered to the Trustee or the
Registrar for cancellation.
SECTION 2.13. Defaulted Interest. If the Company defaults in a payment of
interest on the Debentures, it shall pay the defaulted interest to the persons
who are Debentureholders on a subsequent special record date. The Company shall
fix the special payment date and special record date. The special record date
shall be at least 15 days prior to the special payment date. At least 15 days
before such special record date, the Company shall mail to each Debentureholder
a notice that states such special record date, the special payment date and the
amount of defaulted interest to be paid. The Company may pay defaulted interest
in any other lawful manner. Pursuant to Section 4.01, the Company shall pay
interest on overdue installments of interest, to the extent lawful.
SECTION 2.14. CUSIP Numbers. The Company in issuing the Debentures may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debentures or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debentures, and any such redemption shall
not be affected by any defect in or omission of such numbers.
<PAGE>
ARTICLE THREE
REDEMPTION
----------
SECTION 3.01. Notices to Trustee. The Debentures may be redeemed at any
time in whole or in part, at the redemption price(s) set forth in section 5 of
the Debentures. The Registrar may select for redemption portions of the
principal amount of Debentures that have denominations larger than $10,000.
Debentures and portions of them it selects shall be in amounts of $10,000 or
integral multiples of $10,000. If the Company elects to redeem Debentures, it
shall notify the Registrar in writing of the redemption date, the Maturity or
Maturities to be redeemed, and the principal amount of each Maturity of
Debentures to be redeemed. In the case of any such redemption, the Company shall
deliver to the Trustee an Officers' Certificate stating that such redemption
will comply with the provisions for redemption contained herein and in the
Debentures.
The Company shall give each notice provided for in this Section 3.01 at
least 45 days before the redemption date (except that the Trustee may in its
sole discretion waive such notice period at any time).
SECTION 3.02. Selection of Debentures to be Redeemed. If less than all the
Debentures of any Maturity are to be redeemed, the Registrar shall select the
Debentures to be redeemed by such method as the Registrar shall deem fair and
appropriate or if the Debentures are listed on a national securities exchange,
in accordance with the rules of such exchange. The Registrar shall make the
selection from Debentures outstanding and not previously called for redemption.
Provisions of this Indenture that apply to Debentures called for redemption also
apply to portions of Debentures called for redemption.
SECTION 3.03. Notice of Redemption. At least 30 days but not more than 90
days before a redemption date, the Company shall mail a notice of redemption by
first-class mail to each Holder of Debentures to be redeemed. The notice shall
identify the Debentures to be redeemed and shall state: (i) the redemption date;
(ii) the redemption price and accrued interest, if any; (iii) the name and
address of the Paying Agent; (iv) that Debentures called for redemption must be
surrendered to the Paying Agent to collect the redemption price and accrued
interest, if any; (v) that, unless the Company defaults in making the redemption
payments, interest on Debentures called for redemption ceases to accrue on and
after the redemption date and the only remaining right of the Holders is to
receive payment of the redemption price upon surrender to the Paying Agent of
the Debentures; (vi) if any Debenture is being redeemed in part, the portion of
the principal amount of such Debenture to be redeemed and (vii) the CUSIP
number, if any. At the Company's request and expense, the Trustee shall give the
notice of redemption in the Company's name.
SECTION 3.04. Effect of Notice of Redemption. Once a notice of redemption
is mailed, Debentures called for redemption become due and payable on the
redemption date and at the redemption price. Upon surrender to the Paying Agent,
such Debentures shall be paid at the redemption price, plus accrued interest to
the redemption date, but interest installments for which the interest payment
date is on or prior to such redemption date will be payable to the Holders of
record at the close of business on the relevant record dates referred to in the
Debentures.
<PAGE>
SECTION 3.05. Deposit of Redemption Price. At least one Business Day prior
to the redemption date, the Company shall deposit with the Paying Agent (or if
the Company is its own Paying Agent, shall segregate and hold in trust)
immediately available funds sufficient to pay the redemption price of, and
accrued interest on, all Debentures to be redeemed on that date.
SECTION 3.06. Debentures Redeemed in Part. Upon surrender of a Debenture
that is redeemed in part, the Registrar shall authenticate for the Holder, at
the expense of the Company, a new Debenture of the same Maturity equal in
principal amount to the unredeemed portion of the Debenture surrendered.
SECTION 3.07. Repurchase at Option of Holder. Subject to and upon
compliance with the provisions of this Section, at the option of the Holder
thereof, the Company will repurchase Debentures at a price equal to the face
amount of the Debenture, together with all accrued interest thereon. Such right
shall commence in calendar year 2001 and shall be subject to the limitation
that, in no calendar year shall the Company be required to purchase more than
$100,000 principal amount of each maturity of Debentures, on a non-cumulative
basis. Such repurchases shall be made only once each calendar year, on July 1 of
each year commencing in 2001. A Holder desiring the Company to purchase a
Debenture must deliver a written request to the Company, together with the
Debenture and a written instrument of transfer in form satisfactory to the
Company and the Registrar, duly executed by the registered owner or by his
attorney duly authorized in writing. The request may be made only once each
year, commencing in 2001, and the Company will purchase Debentures presented by
Holders on a first-come, first-served basis, based on the date the Company
receives the completed documents. The request and completed documents must be
delivered no earlier than May 1 and no later than May 31 for a purchase to be
completed as of July 1 of that year. Only whole Debentures may be surrendered
for repurchase and the Company may suspend or terminate its obligation to
repurchase Debentures pursuant to this Section 3.07 if: (i) it determines, in
its sole discretion, that circumstances make such repurchase not reasonably
practical; (ii) it determines, in its sole discretion, that such repurchase
would cause adverse tax consequences to the Company or the Holders of
Debentures; (iii) any governmental or regulatory agency with jurisdiction over
the Company so demands for the protection of the Holders of Debentures; or (iv)
it determines, in its sole discretion, that such repurchase would be unlawful.
ARTICLE FOUR
COVENANTS
---------
SECTION 4.01. Payment of Debentures. The Company shall pay the principal of
and interest on the Debentures on the dates and in the manner provided in the
Debentures. An installment of principal or interest shall be considered paid on
the date due if the Paying Agent (other than the Company or a Subsidiary) holds
on that date money designated for and sufficient to pay the installment. The
Company shall deposit with the Paying Agent immediately available funds
sufficient to pay the principal of or interest on the Debentures at least one
Business Day prior to the dates provided in the Debentures.
<PAGE>
The Company shall pay interest on overdue principal and interest on overdue
installments of interest, to the extent lawful, at the rate per annum borne by
the Debentures.
SECTION 4.02. SEC Reports. Within 5 days after the Company files with the
SEC copies of its annual reports and other information, documents and reports
(or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which it is required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company shall
file the same with the Trustee. The Company also shall comply with the other
provisions of TIA Section 314(a).
SECTION 4.03. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that a review of the activities of the Company has
been made under the supervision of the signing Officers with a view to
determining whether a Default or Event of Default has occurred and whether or
not the signers know of any Default by the Company in performing any of its
obligations under this Indenture. If they do know of such a Default, the
certificate shall describe all such Events of Default or Defaults, their status
and what action the Company is taking or proposes to take with respect thereto.
Upon becoming aware of any Default or Event of Default, the Company shall
deliver an Officers' Certificate to the Trustee specifying the Default or Event
of Default, its status and the action the Company proposes to take with respect
thereto.
SECTION 4.04. Limitation on Dividends and Stock Purchases. The Company
shall not declare or pay any dividend or make any distribution on its Capital
Stock or to its shareholders (other than dividends or distributions payable in
its Capital Stock) or purchase, redeem or otherwise acquire or retire for value,
or permit any Subsidiary to purchase or otherwise acquire for value, any Capital
Stock of the Company (collectively, "Restricted Payments") if, at the time of
such Restricted Payment, or after giving effect thereto, (i) an Event of Default
shall have occurred and be continuing, or (ii) a Default shall occur as a result
thereof; provided, however, that the provisions of this limitation on dividends
shall not prevent (A) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such payment complied
with the provisions of this limitation on dividends, or (B) the acquisition or
retirement of any shares of the Company's Capital Stock by exchange for, or out
of the proceeds of the sale of shares of, its Capital Stock.
<PAGE>
SECTION 4.05. Pari Passu Indebtedness. There shall be no restriction on the
amount or type of Indebtedness of the Company which may be pari passu with (i.e.
having no priority of payment over and not subordinated in right of payment to)
or subordinate to the Debentures. At September 30, 1998, the Company had
outstanding the following Debentures which rank pari passu with the Debentures:
$6,000,000 aggregate principal amount of its Series 5/13/91 Registered Floating
Rate Redeemable Subordinated Debentures (the "Series 5/13/91 Debentures") which
were issued pursuant to an Indenture dated as of June 1, 1991, by and between
the Company and the First American Bank of Georgia, N.A., $4,500,000 aggregate
principal amount of its Series 2/20/92 Registered Floating Rate Redeemable
Subordinated Debentures (the "Series 2/20/92 Debentures") which were issued
pursuant to an Indenture dated as of March 1, 1992, by and between the Company
and The Bank of New York, $7,000,000 aggregate principal amount of its Series
6/29/92 Registered Floating Rate Redeemable Subordinated Debentures (the "Series
6/29/92 Debentures") which were issued pursuant to an Indenture dated as of July
1, 1992 by and between the Company and the Bank of New York, $8,000,000
aggregate principal amount of its Series 9/13/93 Registered Floating Rate
Redeemable Subordinated Debentures (the "Series 9/13/93 Debentures") which were
issued pursuant to an Indenture dated as of September 15, 1993 by and between
the Company and the Bank of New York, $4,500,000 aggregate principal amount of
its Series 1/28/94 Registered Floating Rate Redeemable Subordinated Debentures
(the "Series 1/28/94 Debentures") which were issued pursuant to an Indenture
dated as of February 1, 1994 by and between the Company and the Bank of New
York, $4,500,000 aggregate principal amount of its Series 10/28/94 Registered
Floating Rate Redeemable Subordinated Debentures (the "Series 10/28/94
Debentures") which were issued pursuant to an Indenture dated as of November 1,
1994 by and between the Company and the Bank of New York, $9,000,000 aggregate
principal amount of its Series 5/12/95 Registered Floating Rate Redeemable
Subordinated Debentures (the "Series 5/12/95 Debentures") which were issued
pursuant to an Indenture dated as of June 1, 1995 by and between the Company and
the Bank of New York,$9,000,000 aggregate principal amount of its Series
10/19/95 Registered Floating Rate Redeemable Subordinated Debentures (the
"Series 10/19/95 Debentures") which were issued pursuant to an Indenture dated
as of November 1, 1995 by and between the Company and the Bank of New York,
$10,000,000 aggregate principal amount of its Series 5/10/96 Registered Floating
Rate Redeemable Subordinated Debentures (the "Series 5/10/96 Debentures") which
were issued pursuant to an Indenture dated as of June 1, 1996 by and between the
Company and the Bank of New York, and $6,000,000 aggregate principal amount of
its Series 10/15/96 Registered Floating Rate Redeemable Subordinated Debentures
(the "Series 10/15/96 Debentures") which were issued pursuant to an Indenture
dated as of November 1, 1996 by and between the Company and the Bank of New
York, and $8,500,000 aggregate principal amount of its Series 4/30/97 Registered
Floating Rate Redeemable Subordinated Debentures (the "Series 4/30/97
Debentures"), which were issued pursuant to an Indenture dated as of May 1, 1997
by and between the Company and the Bank of New York. The Bank of New York, the
Trustee herein named, presently serves as trustee for all of the debentures
which rank pari passu with the Debentures, including the Series 5/13/91
Debentures.
<PAGE>
ARTICLE FIVE
SUCCESSOR CORPORATION
---------------------
SECTION 5.01. When the Company May Merge, etc. The Company shall not
consolidate with or merge with or into, or transfer all or substantially all of
its assets to, any other person unless (i) such other person is a corporation
organized or existing under the laws of the United States or a state thereof,
(ii) such surviving person (other than the Company) expressly assumes by
supplemental indenture all the obligations of the Company under the Debentures,
this Indenture and the other agreements related thereto, (iii) immediately after
such transaction no Default or Event of Default exists, and (iv) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger or transfer and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for have been complied with. Thereafter all such obligations of the
predecessor corporation shall terminate.
ARTICLE SIX
DEFAULTS AND REMEDIES
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Debenture when the same becomes due and payable and the default continues
for a period of 30 days, whether or not such payment shall be prohibited by
the provisions of Article Ten;
(2) the Company defaults in the payment of principal of any
Debenture when the same becomes due and payable at maturity, upon
redemption or otherwise, whether or not such payment shall be prohibited by
the provisions of Article Ten;
(3) the Company fails to comply with any of its other agreements
in the Debentures or this Indenture and the default continues for the
period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law: (A) commences a voluntary case or proceeding, (B) consents
to the entry of an order for relief against it in an involuntary case or
proceeding, (C) consents to the appointment of a Custodian (as defined
herein) of it or for all or substantially all of its property, or (D) makes
a general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (A) is for relief against the Company in an
involuntary case or proceeding, (B) appoints a Custodian of the Company or
for all or substantially all of its property, or (C) orders the liquidation
of the Company, and in each case the order or decree remains unstayed and
in effect for 60 days.
<PAGE>
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A default under clause (3) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Debentures notify the Company of the default and the Company does not cure the
default within 60 days after receipt of the notice. The notice must specify the
default, demand that it be remedied and state that the notice is a "Notice of
Default". If the Holders of 25% in principal amount of the outstanding
Debentures request the Trustee to give such notice on their behalf, the Trustee
shall do so.
SECTION 6.02. Acceleration. If any Event of Default (other than an Event of
Default specified in Section 6.01(4) or (5)) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the outstanding Debentures by notice to the Company and the Trustee,
may (but shall not be obligated to) declare the principal of and all accrued
interest on all the Debentures to be due and payable immediately. Upon such
declaration such principal and interest shall be due and payable immediately. If
an Event of Default specified in Section 6.01(4) or (5) occurs, all unpaid
principal and accrued interest on the Debentures then outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Debentureholder. The Holders of a majority
in principal amount of the outstanding Debentures by notice to the Trustee may
rescind an acceleration and its consequences if all existing Events of Default
have been cured or waived, except nonpayment of principal or interest that has
become due solely because of the acceleration, and if the rescission would not
conflict with any judgment or decree. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on the Debentures
or to enforce the performance of any provision of the Debentures or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Debentures or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Debentureholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.07 and 9.02,
the Holders of a majority in principal amount of the outstanding Debentures by
notice to the Trustee may waive a past Default and its consequences, except a
Default under Section 6.01(1) or (2). When a Default is so waived, it shall be
deemed cured and ceases.
<PAGE>
SECTION 6.05. Control by Majority. The Holders of a majority in principal
amount of outstanding Debentures may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided, however: (i) such
direction shall not be in conflict with any rule of law or with this Indenture;
(ii) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the rights of any Holder not taking part in such
direction; (iii) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken or if the Trustee in good faith shall
determine that the proceedings so directed would involve it in personal
liability; or (iv) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction. In the event that the
Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all risk, loss or expense caused by taking such action or
following such direction.
SECTION 6.06. Limitation of Suits. A Debentureholder may not pursue any
remedy with respect to this Indenture or the Debentures unless: (i) the Holder
gives to the Trustee written notice of a continuing Event of Default; (ii) the
Holders of at least 25% in principal amount of the outstanding Debentures make a
written request to the Trustee to pursue the remedy; (iii) such Holder or
Holders offer and, if requested, provide to the Trustee indemnity and security
satisfactory to the Trustee against any loss, liability or expense; (iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, provision of indemnity and security;
and (v) during such 60-day period the Holders of a majority in principal amount
of the Debentures do not give the Trustee a direction inconsistent with such
request.
A Debentureholder may not use this Indenture to prejudice the rights of
another Debentureholder or to obtain a preference or priority over another
Debentureholder.
SECTION 6.07. Rights of Holders to Receive Payment. Subject to Article Ten
and notwithstanding any other provisions of this Indenture, the right of any
Holder of a Debenture to receive payment of principal of and interest on the
Debenture, on or after the respective due dates expressed in the Debenture, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder, except as to a postponement of an interest payment consented to as
provided in clause (ii) of Section 9.02.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in payment
of interest or principal specified in Section 6.01(1) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal and
interest remaining unpaid, together with interest on overdue principal and, to
the extent that the payment of such interest is lawful, interest on overdue
installments of interest.
SECTION 6.09. Trustee May File Proof of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and any predecessor Trustee and the Debentureholders allowed in any
judicial proceedings relative to the Company, its creditors or its property.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Debentureholder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Debentureholder in any such proceedings.
<PAGE>
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article Six, it shall pay out the money in the following order: (i) first,
to the Trustee and any predecessor Trustee for costs and expenses of collection
of such monies and for compensation payable to the Trustee or its agents and
counsel and all other expenses, liabilities, advances and other amounts
incurred, made or due under Section 7.07; (ii) second, to holders of Senior
Indebtedness of the Company to the extent required by Article Ten; (iii) third,
to Debentureholders for amounts due and unpaid on the Debentures for principal
and interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Debentures for principal and interest,
respectively; and (iv) fourth, to the Company. The Trustee may fix a record date
and payment date for any payment to Debentureholders pursuant to this Section.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard for the merits and good faith of the claims or defenses made
by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the outstanding Debentures.
ARTICLE SEVEN
TRUSTEE
-------
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default; (i) the Trustee
need perform only those duties that are specifically set forth in this Indenture
and no others; and (ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; the Trustee,
however, shall examine the certificates and opinions submitted in accordance
with Section 11.03 to determine whether or not they conform to the requirements
of this Indenture.
<PAGE>
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that: (i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01; (ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee
shall not be liable with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or risk its own funds or otherwise incur any financial liability unless it
receives indemnity satisfactory to it against any and all loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with Company.
(g) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.02. Rights of Trustee. Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform with the
provisions of Section 11.04. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel and the advice or opinion of such
counsel as to matters of law shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advise or opinion of such
counsel.
<PAGE>
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders of the Debentures, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security and
indemnity, satisfactory to the Trustee in its sole discretion, against all
costs, expenses and liabilities which might be incurred by the Trustee therein
or thereby.
(g) The Trustee shall not be obligated 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 or
any other paper or document; provided, however, the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit. Nothing contained in this Indenture shall create any liability to
the Trustee in the event it elects to make or not to make a further inquiry or
investigation to which it is entitled as aforesaid.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Debentures and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights. The
Trustee, however, must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Debentures; it shall not be accountable for the Company's use of the
proceeds from the Debentures; and, subject to any liabilities which may be found
to exist under the provisions of the Federal securities laws, shall not be
responsible for any statement of the Company in this Indenture or any document
issued in connection with the sale of the Debentures or any statement in the
Debentures other than its certificate of authentication or in any prospectus
used in connection with the sale of such Debentures, other than statements
provided in writing by the Trustee for use in such prospectus.
SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Debentureholder
notice of the Default within 90 days after it occurs, or if it becomes known to
the Trustee after such 90 days, as soon as practicable after it becomes known to
the Trustee. Except in the case of a Default in payment of principal of or
interest on any Debenture or any amounts due on redemption, the Trustee may
withhold the notice if and so long as the board of directors of the Trustee, the
executive or any trust committee of such board and/or Responsible Officers of
the Trustee in good faith determine(s) that withholding the notice is in the
interest of Debentureholders.
SECTION 7.06. Reports by Trustees to Holders. Within 60 days after each May
15, beginning with May 15, 1999, the Trustee shall mail to each Debentureholder
a brief report dated as of such May 15 that complies with TIA Section 313(a).
The Trustee also shall comply with TIA Section 313(b), (c) and (d).
<PAGE>
A copy of each such report at the time of its mailing to Debentureholders
shall be filed by the Company with the SEC and each stock exchange on which the
Debentures are listed. The Trustee shall furnish the Company with copies of such
reports sufficiently in advance of its mailing to Debentureholders to permit the
Company to make such filings in a timely manner. The Company shall notify the
Trustee when the Debentures are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee such compensation for its services as the Company and the Trustee shall
from time to time agree in writing. The Trustee's compensation hereunder shall
not be limited by any law on compensation relating to the trustee of an express
trust. The Company shall reimburse the Trustee upon request for reasonable
disbursements, advances and expenses incurred or made by it in connection with
its duties hereunder. The Company shall indemnify each of the Trustee and any
predecessor Trustee against any loss or liability incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder, including the reasonable expenses and attorneys' fees of defending
itself against any claim of liability arising hereunder. The Company shall
defend any claim against the Trustee of which the Company has notice. The
Trustee may have separate counsel, and if it does, the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not reimburse any
expenses or indemnify against any loss or liability incurred by the Trustee
through the Trustee's negligence or bad faith.
The obligations of the Company under this Section 7.07 to indemnify and
compensate the Trustee to pay or reimburse the Trustee for such expenses,
disbursements, and advances shall constitute Indebtedness. To secure the
Company's payment obligations in this Section, the Trustee shall have a lien
prior to the Debentures on all money or property held or collected by the
Trustee, except that held in trust to pay principal of or interest on particular
Debentures.
When the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in Section 6.01(4) or (5), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee and the appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section. The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Debentures may remove the
Trustee by so notifying the Trustee and the Company, and may appoint a successor
Trustee with the Company's consent. The Company may remove the Trustee if: (i)
the Trustee fails to comply with Section 7.10; (ii) the Trustee is adjudged a
bankrupt or an insolvent; (iii) a receiver or other public officer takes charge
of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.
<PAGE>
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately thereafter, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee (subject to the lien provided for in Section 7.07), the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Debentureholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the outstanding Debentures may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Debentureholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee, provided, however, that if the Trustee
shall fail to comply with TIA Section 310(b)(i), only a Debentureholder who has
been a bona fide holder of the Debentures for at least six months and has
requested the Trustee in writing to comply with such provision may so petition
such court.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates
with, merges or converts into or transfers all or substantially all of its
corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. There shall at all times be a
trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States or of any state thereof authorized under
such laws to exercise corporate trust powers, shall be subject to supervision or
examination by Federal or state authority and shall at all times have a combined
capital and surplus of at least $1,000,000. If such trustee publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervisory or examining authority, then for the purposes of this Section 7.10,
the combined capital and surplus of such trustee shall be deemed to be its
combined capital and surplus as set forth in its most recent published annual
report of condition.
This Indenture shall always have a trustee who satisfies the requirements
of TIA Section 310(a)(1) and (2). The Trustee shall comply with TIA Section
310(b) and, for purposes of TIA Section 310(b)(1), the following indentures
satisfy the requirements for such exclusion set forth in TIA Section
310(b)(1)(i): the Indenture dated as of June 1, 1991 by and between the Company
and First American Bank of Georgia, N.A., as Trustee, the Indenture dated as of
March 1, 1992, by and between the Company and The Bank of New York, as Trustee,
the Indenture dated as of July 1, 1992, by and between the Company and the Bank
of New York, as Trustee, the Indenture dated as of September 15, 1993, by and
between the Company and the Bank of New York, as Trustee, the Indenture dated as
of February 1, 1994, by and between the Company and the Bank of New York, as
Trustee, the Indenture dated as of November 1, 1994, by and between the Company
and the Bank of New York, as Trustee, the Indenture dated as of June 1, 1995, by
and between the Company and The Bank of New York, as Trustee, the Indenture
dated as of November 1, 1995, by and between the Company and The Bank of New
York, as Trustee, the Indenture dated as of June 1, 1996, by and between the
Company and The Bank of New York, as Trustee, the Indenture dated as of November
1, 1996, by and between the Company and The Bank of New York, as Trustee, and
the Indenture dated as of May 1, 1997, by and between the Company and The Bank
of New York, as Trustee. The Bank of New York presently serves as trustee under
each such indenture.
<PAGE>
SECTION 7.11. Preferential Collection of Claims Against the Company. The
Trustee shall be subject to TIA Section 311(a), excluding any creditor
relationship arising as provided in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
SECTION 7.12. Paying Agents. The Company shall cause each Paying Agent
other than the Trustee to execute and deliver to it and the Trustee an
instrument in which such Agent shall agree with the Trustee, subject to the
provisions of this Section 7.12; (i) that it will hold sums held by it as Agent
for the payment of principal of or interest on the Debentures (whether such sums
have been paid to it by the Company or by any obligor on the Debentures) in
trust for the benefit of Holders of the Debentures; (ii) that it will at any
time during the continuance of any Event of Default, upon written request from
the Trustee, deliver to the Trustee all sums so held in trust by it; (iii) that
it will give the Trustee written notice within three Business Days of any
failure of the Company (or by any obligor on the Debentures) in the payment of
any installment of the principal of or interest on the Debentures when the same
shall be due and payable; and (iv) that it will comply with the provisions of
the TIA applicable to it.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
----------------------
SECTION 8.01. Termination of the Company's Obligations. The Company may
terminate all of its obligations under the Debentures and this Indenture if all
Debentures previously authenticated and delivered (other than destroyed, lost or
stolen Debentures which have been replaced or paid) have been delivered to the
Trustee for cancellation or if:
(1) the Debentures mature within one year or all of them are to
be called for redemption within one year under arrangements satisfactory to
the Trustee for giving the notice of redemption;
<PAGE>
(2) the Company irrevocably deposits in trust with the Trustee
money or direct non-callable obligations of, or non-callable obligations
guaranteed by, the United States for the payment of which guarantee or
obligation the full faith and credit of the United States is pledged ("U.S.
Government Obligations"), sufficient to pay principal of and interest on
the outstanding Debentures to maturity or redemption, as the case may be,
and immediately after making the deposit, the Company shall give notice of
such event to the Debentureholders; provided, however, that if such
irrevocable deposit in trust with the Trustee of cash or U.S. Government
Obligations is made, the Company shall have delivered to the Trustee either
an Opinion of Counsel with no material qualifications in form and substance
satisfactory to the Trustee to the effect that Holders of the Debentures
(i) will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit (and the defeasance contemplated in connection
therewith) and (ii) will be subject to Federal income tax on the same
amounts and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred, or an applicable
favorable ruling to that effect is received from or published by the
Internal Revenue Service;
(3) the Company has paid or caused to be paid all sums then
payable by the Company to the Trustee hereunder as of the date of such
deposit; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with. The Company's obligations in
paragraph 9 of the Debentures and in Sections 2.03, 2.04, 2.05, 2.07, 2.08,
4.01, 7.07 and 8.03, however, shall survive until the Debentures are no
longer outstanding. Thereafter, the Company's obligations in such paragraph
9 and in Sections 7.07 and 8.03 shall survive.
After such irrevocable deposit and delivery of an Officers' Certificate and
Opinion of Counsel pursuant to this Section 8.01, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Debentures and this Indenture except for those surviving obligations specified
above.
SECTION 8.02. Application of Trust Money. The Trustee shall hold in trust
money and U.S. Government Obligations deposited with it pursuant to Section
8.01. It shall apply the deposited money through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
Debentures. Money and U.S. Government Obligations so held in trust shall not be
subject to Article Ten.
SECTION 8.03. Repayment to the Company. Subject to Section 7.07, the
Trustee and the Paying Agent shall promptly pay to the Company upon request any
excess money or securities held by them at any time. The Trustee and the Paying
Agent shall pay to the Company upon request any money held by them for the
payment of principal or interest that remains unclaimed for two years, provided
such request is made by the Company within one year after the expiration of such
two year period that such money remains unclaimed. Thereafter, the Company shall
have no right to request repayment of unclaimed money, and such unclaimed money
shall be held and disposed of by the Trustee in accordance with applicable law.
The Trustee and the Paying Agent shall have no right to request or require that
the Company accept repayment of any unclaimed money.
The Trustee or the Paying Agent, before being required to make any
repayment to the Company of unclaimed money, may at the expense of the Company
mail to each Holder who has failed to claim a payment of interest or principal
which is due, 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
mailing), any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Debentureholders entitled to such
money must look to the Company for payment as general creditors unless
applicable abandoned property law designates another person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
<PAGE>
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
SECTION 9.01. Without Consent of Holders. The Company, with the consent of
Trustee, may amend or supplement this Indenture or the Debentures without notice
to or consent of any Debentureholder: (i) to cure any ambiguity, omission,
defect or inconsistency; (ii) to comply with Section 5.01; or (iii) to make any
change that does not adversely affect the rights of any Debentureholder. The
Trustee shall not be obligated to enter into any supplemental indenture which
affects its own rights, duties or immunities under this Indenture.
SECTION 9.02. With Consent of Holders. The Company, with the consent of the
Trustee, may amend or supplement this Indenture or the Debentures without notice
to any Debentureholder, but with the written consent of the Holders of at least
a majority in principal amount of the outstanding Debentures. The Holders of a
majority in principal amount of the outstanding Debentures may waive compliance
by the Company with any provision of this Indenture or the Debentures without
notice to any Debentureholder. Without the consent of each Debentureholder
affected, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not: (i) reduce the amount of Debentures whose
Holders must consent to an amendment, supplement or waiver; (ii) reduce the rate
of or extend the time for payment of interest on any Debenture (except that
Holders of not less than 75% in principal amount of all outstanding Debentures
may consent, on behalf of the Holders of all of the outstanding Debentures, to
the postponement of any interest payment for a period not exceeding three years
from its due date); (iii) reduce the principal of or extend the fixed maturity
of any Debenture; (iv) waive a default in the payment of the principal of or
interest on, or other redemption payment with respect to, any Debenture, (v)
make any Debenture payable in money other than that stated in the Debenture;
(vi) make any change in Article Ten that adversely affects the rights of any
Debentureholder; or (vii) make any change in Section 6.04, 6.07 or the third
sentence of this Section 9.02.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders a notice briefly describing the
amendment.
It shall not be necessary for the consent of the Holders under this section
to approve the particular form of any proposed amendment or supplement, but it
shall be sufficient if such consent approved the substance thereof.
Upon the request of the Company, accompanied by a resolution of the Board
of Directors or any duly authorized committee thereof, authorizing the execution
of any such supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Debentureholders as
aforesaid, the Trustee shall join with the Company in execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture.
<PAGE>
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trust 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
7.01) 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,
liabilities or immunities under this Indenture or otherwise.
SECTION 9.04. Compliance with Trust Indenture Act. Every amendment to or
supplement of this Indenture or the Debentures shall comply with the TIA as then
in effect.
SECTION 9.05. Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to an amendment, supplement or
waiver by a Holder of a Debenture is a continuing consent by the Holder and
every subsequent Holder of that Debenture or portion of that Debenture that
evidences the same debt as the consenting Holder's Debenture, even if notation
of the consent is not made on any Debenture. Any such Holder or subsequent
Holder, however, may revoke the consent as to his Debenture or portion of a
Debenture. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Debentures.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is six months after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
After an amendment, supplement or waiver becomes effective, it shall bind
every Debentureholder unless it makes a change described in any of clauses (i)
through (vii) of Section 9.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Debenture who has consented to it and every
subsequent Holder of a Debenture or portion of a Debenture that evidences the
same debt as the consenting Holder's Debenture (except that an amendment,
supplement or wavier postponing any interest payment for a period not exceeding
three years from its due date shall, as provided in clause (ii) of Section 9.02,
bind all Debentureholders upon the consent of Holders of not less than 75% in
principal amount of all outstanding Debentures).
SECTION 9.06. Notation on or Exchange of Debentures. If an amendment,
supplement or waiver changes the terms of a Debenture, the Trustee may require
the Holder of the Debenture to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Debenture about the changed terms and return it
to the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Debenture shall issue and the Trustee shall
authenticate a new Debenture that reflects the changed terms. Failure to make
the appropriate notation or issue a new Debenture shall not affect the validity
and effect of such amendment, supplement or waiver.
<PAGE>
SECTION 9.07. Trustee to Sign Amendments, etc. The Trustee may but need not
sign any amendment, supplement or waiver authorized pursuant to this Article if
the amendment, supplement or waiver adversely affects the rights of the Trustee.
The Trustee shall be entitled to request and receive an indemnity satisfactory
to it before signing any amendment, supplement or waiver.
ARTICLE TEN
SUBORDINATION
-------------
SECTION 10.01. Agreement to Subordinate. The Company, for itself and its
successors, and each Holder, by his acceptance of Debentures, agrees that the
payment of the principal of, interest on or any other amounts due on the
Debentures is subordinated in right of payment, to the extent and in the manner
stated in this Article Ten, to the prior payment in full of all Senior
Indebtedness. Each Holder by his acceptance of the Debentures authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Senior Indebtedness and
such Holder, the subordination provided in this Article Ten and appoints the
Trustee his attorney-in-fact for such purpose.
This Article Ten shall constitute a continuing offer to all persons who, in
reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions of this Article Ten are made for the benefit
of the holders of Senior Indebtedness, and such holders are made obligees under
this Article Ten and they and/or each of them may enforce such provisions of
this Article Ten. The Trustee has no fiduciary duties or obligations to holders
of Senior Indebtedness.
"Senior Indebtedness" means Indebtedness of the Company outstanding at any
time, whether outstanding on the date hereof or hereafter created, which (i) is
secured, in whole or in part, by any asset or assets owned by the Company or a
Subsidiary, or (ii) arises from unsecured borrowings by the Company from a
commercial bank, a savings bank, a savings and loan association, an insurance
company, a company whose securities are traded in a national securities market,
or any wholly-owned subsidiary of any of the foregoing, or (iii) arises from
unsecured borrowings by the Company from any pension plan (as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended), or
(iv) arises from borrowings by the Company which are evidenced by commercial
paper, or (v) other unsecured borrowings by the Company which are subordinate to
Indebtedness of a type described in clauses (i), (ii) or (iv) above if,
immediately after the issuance thereof, the total capital, surplus and retained
earnings of the Company exceed the aggregate of the outstanding principal amount
of such borrowings, or (vi) is a guarantee or other liability of the Company of
or with respect to Indebtedness of a Subsidiary of a type described in any of
clause (ii), (iii) or (iv) above.
SECTION 10.02. Debentures Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of the Company. Upon
any distribution of assets of the Company in any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or otherwise);
<PAGE>
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full of all principal thereof, interest due thereon and other
amounts due thereon before the Holders of the Debentures are entitled to receive
any payment on account of the principal of or interest on the Debentures;
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Debentures or the Trustee on behalf of the Holders of the Debentures would be
entitled except for the provisions of this Article Ten, including any such
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated or the
payment of the Debentures, shall be paid by the liquidating trustee or agent or
other person making such payment or distribution directly to the holders of the
Senior Indebtedness or their representative (pro rata as to each such holder or
representative on the basis of the respective amounts of unpaid Senior
Indebtedness held or represented by each), to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution or provision therefor to the holders
of such Senior Indebtedness, except that Holders of the Debentures shall be
entitled to receive securities that are subordinated to Senior Indebtedness to
at least the same extent as the Debentures; and
(c) in the event that notwithstanding the foregoing provisions of this
Section 10.02, any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Debentures, shall be received by the Trustee or the Holders of
the Debentures on account of principal of or interest on the Debentures before
all Senior Indebtedness is paid in full, or effective provision made for its
payment, such payment or distribution (subject to the provisions of Sections
10.05 and 10.06) shall be received and held in trust for and shall be paid over
to the holders of the Senior Indebtedness remaining unpaid or unprovided for or
their representative (pro rata as provided in subsection (b) above), for
application to the payment of such Senior Indebtedness until all such Senior
Indebtedness shall have been paid in full, after giving effect to any concurrent
payment or distribution or provision therefor to the holders of such Senior
Indebtedness, except that Holders of the Debentures shall be entitled to receive
securities that are subordinated to Senior Indebtedness to at least the same
extent as the Debentures.
The Company shall give prompt written notice to the Trustee of any dissolution,
winding up, liquidation or reorganization of the Company and of any fact known
to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Debentures.
SECTION 10.03. Debentureholders to be Subrogated to Rights of Holders of
Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness
pursuant to this Article Ten, the Holders of the Debentures shall be subrogated
equally and ratably to the right of the holders of the Senior Indebtedness to
receive payments or distributions of assets of the Company applicable to the
Senior Indebtedness until all amounts owing on the Debentures shall be paid in
full, and for the purpose of such subrogation no payments or distributions to
the holders of the Senior Indebtedness by or on behalf of the Company or by or
on behalf of the Holders of the Debentures by virtue of this Article Ten which
otherwise would have been made to the Holders of the Debentures shall, as among
the Company, its creditors other than holders of the Senior Indebtedness and the
Holders of the Debentures, be deemed to be payment by the Company to or on
account of the Senior Indebtedness, it being understood that the provisions of
this Article Ten are intended solely for the purpose of defining the relative
rights of the Holders of the Debentures, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
<PAGE>
SECTION 10.04. Obligation of the Company Unconditional. Nothing contained
in this Article Ten or elsewhere in this Indenture or in any Debenture is
intended to or shall impair, as between the Company, its creditors other than
Holders of Senior Indebtedness and the Holders of the Debentures, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Debentures the principal of and interest on the Debentures 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 Debentures and
creditors of the Company, other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Debenture from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Ten of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy. Upon
any distribution of assets of the Company referred to in this Article Ten, the
Trustee, subject to the provisions of Sections 7.01 and 7.02, and the Holders of
the Debentures shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of the
liquidating trustee or agent or other person making any distribution to the
Trustee or the Holders of the Debentures, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Ten.
Nothing contained in this Article Ten or elsewhere in this Indenture or in
any Debenture is intended to or shall affect the obligation of the Company to
make or prevent the Company from making, at any time except during the pendency
of any dissolution, winding-up, liquidation or reorganization proceeding,
payments at any time of the principal of or interest on the Debentures.
SECTION 10.05. Knowledge of Trustee. Notwithstanding any provisions of this
Indenture, the Trustee shall not be charged with actual knowledge of the
existence of any facts which would prohibit the making of any payment of monies
to or by the Trustee, or the taking or not taking of any other action by the
Trustee, until two Business Days after the Trustee through a Responsible Officer
shall have received written notice thereon from the Company, any Debentureholder
or any Paying Agent or the holder or representative of any class of Senior
Indebtedness.
SECTION 10.06. Application by Trustee of Monies Deposited With It. If at
least two Business Days prior to the date on which by the terms of this
Indenture any monies deposited with the Trustee or any Paying Agent may become
payable for any purpose (including, without limitation, the payment of either
the principal of or the interest on any Debenture) the Trustee shall not have
received with respect to such monies the notice provided for in Section 10.05,
then the Trustee shall have full power and authority to receive such monies and
to apply the same to the purpose for which they were received and shall not be
affected by any notice to the contrary which may be received by it on or after
such date. This Section shall be construed solely for the benefit of the Trustee
and Paying Agent and shall not otherwise affect the rights of holders of Senior
Indebtedness.
<PAGE>
SECTION 10.07. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness to enforce subordination as provided herein
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with. The holders of Senior Indebtedness may
extend, renew, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise deal
freely with the Company, all without affecting the liabilities and obligations
of the parties to the Indenture or the Holders. No provision in any supplemental
indenture which affects the superior position of the holders of any then
existing Senior Indebtedness shall be effective against the holders of the
Senior Indebtedness who have not consented thereto.
SECTION 10.08. Debentureholders Authorize Trustee to Effectuate
Subordination of Debentures. Each Holder of the Debentures by acceptance thereof
authorizes and expressly directs the Trustee on its, his or her behalf to take
such action as may be necessary or appropriate in the sole discretion of the
Trustee to effectuate the subordination provided in this Article Ten and
appoints the Trustee its, his or her attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or otherwise),
the immediate filing of a claim for the unpaid balance of its, his or her
Debentures in the form required in said proceedings and cause said claim to be
approved; provided, however, that the Trustee shall not be liable for any action
or failure to act in accordance with this Article Ten. If the Trustee does not
file a proper claim or proof of debt in the form required in such proceeding
prior to 30 days before the expiration of the time to file such claim or claims,
then the holders of Senior Indebtedness have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the Holders of said
Debentures.
SECTION 10.09. Right of Trustee to Hold Senior Indebtedness. The Trustee
shall be entitled to all of the rights set forth in this Article Ten 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 be
construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.10. Article Ten Not to Prevent Events of Default. The failure to
make a payment on account of principal shall not be construed as preventing the
occurrence of an Event of Default under Section 6.01.
SECTION 10.11. No Fiduciary Duty Created to Holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness by virtue of the
provisions of this Article Ten.
<PAGE>
SECTION 10.12. Trustee's Compensation Not Prejudiced. Nothing in this
Article Ten shall apply to amounts due to the Trustee pursuant to Section 7.07.
ARTICLE ELEVEN
MISCELLANEOUS
-------------
SECTION 11.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Notices. Any notice or communication shall be sufficiently
given if in writing and delivered or mailed as follows:
(a) Notices or communications to the Company or the Trustee shall be given
only by hand delivery or by certified or registered first class mail, return
receipt requested, or by facsimile transmission promptly followed by hand
delivery or certified or registered first class mail, return receipt requested,
as follows:
If to the Company, addressed to:
INTERVEST CORPORATION OF NEW YORK
10 Rockefeller Plaza, Suite 1015
New York, New York 10020-1903
<PAGE>
If to the Trustee, addressed to:
THE BANK OF NEW YORK
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Department
Any notice or communication to the Company or the Trustee shall be deemed
given on the day delivered and receipted for if delivered by hand, or on the day
the return receipt card is signed on behalf of the Company or the Trustee if
sent by certified or registered mail. The Company or the Trustee by notice to
the other and to Debentureholders may designate additional or different
addresses for subsequent notices or communications.
(b) Notices or communications to a Debentureholder shall be mailed by first
class mail to such Debentureholder at the address which appears on the
registration books of the Registrar and shall be sufficiently given to such
Debentureholder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed to a Debentureholder in
the manner provided in this paragraph (b), it is duly given, whether or not the
addressee receives it. If the Company mails a notice or communication to
Debentureholders it shall mail a copy of such notice to the Trustee and each
Agent at the same time.
SECTION 11.03. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee: (i) an Officers'
Certificate in form and substance satisfactory to the Trustee stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed actions have been complied with; and (ii) an Opinion of Counsel in form
and substance satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include: (i) a statement that the person
making such certificate or opinion has read such covenant or condition; (ii) 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; (iii) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 11.05. Rules by Trustee and Agents. The Trustee may make reasonable
rules for action by, or at a meeting of, Debentureholders. The Registrar or
Paying Agent may make reasonable rules for its functions.
SECTION 11.06. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions are not required to be open in the City of
New York, in the State of New York, or in the city in which the Trustee
administers its corporate trust business. If a payment date is a Legal Holiday
at a place of payment, payment may be made at such place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
<PAGE>
SECTION 11.07. Governing Law. The laws of the State of New York, without
regard to the principles of conflicts of law, shall govern this Indenture and
the Debentures.
SECTION 11.08. No Recourse Against Others. Liabilities of directors,
officers, employees and stockholders, as such, of the Company are waived and
released as provided in paragraph 14 of the Debentures.
SECTION 11.09. Successors. All agreements of the Company in this Indenture
and the Debentures shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successors.
SECTION 11.10. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.11. Separability. In case any provision in this Indenture or in
the Debentures 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, and a Holder shall have no claim against any party
hereto.
SIGNATURES
Dated as of December 1, 1998 INTERVEST CORPORATION
OF NEW YORK
By: ___________________________
Name: Lowell S. Dansker
Title: President
Attest:
- --------------------------------
Name: Lawrence G. Bergman
Title: Secretary
THE BANK OF NEW YORK
as Trustee
By: _______________________________
Name: Mary A. Gumina
Title: Assistant Vice President
Attest:
- -------------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
<PAGE>
Exhibit A
---------
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") OR UNDER ANY APPLICABLE STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF EFFECTIVE REGISTRATION UNDER THE ACT OR
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER OR SUCH STATE SECURITIES LAW.
(FORM OF ACCRUAL DEBENTURE MATURING January 1, 2001)
Number RA(__________/01)- $
INTERVEST CORPORATION OF NEW YORK
Series 11/10/98 Debenture due January 1, 2001
INTERVEST CORPORATION OF NEW YORK, a corporation duly organized and
existing under the laws of the State of New York (the "Company"), promises to
pay to or registered assigns the principal sum of
________________________________________ Dollars on January 1, 2001, together
with interest accruing on principal at eight percent (8%) per annum, plus
interest accruing each calendar quarter on the balance of interest accrued as of
(and including) the last day of the preceding calendar quarter at eight percent
(8%) per annum, and with all accrued interest payable with the principal sum on
January 1, 2001. The provisions on the back of this certificate are incorporated
as if set forth on the face of the certificate.
Record Dates:
The tenth day of the second month of the
calendar quarter
DATED:
Authenticated to be one of the
Debentures described in the
Indenture referred to herein:
THE BANK OF NEW YORK, as INTERVEST CORPORATION OF NEW YORK
Registrar
By: _______________________ (Seal) By: ___________________________
Authorized Signatory President
By: __________________________
Secretary
A-1
<PAGE>
(REVERSE OF DEBENTURE)
Series 11/10/98 Debenture due January 1, 2001
1. Interest. The Company promises to pay interest on the principal
amount of this Debenture and interest on the balance of unpaid accrued interest
at the rate per annum shown above. Interest will accrue on principal from the
fifth day preceding the closing date.
All interest will accrue quarterly but not be paid until maturity, at which
time all unpaid accrued interest will be payable together with the principal
amount. Interest on unpaid accrued interest will accrue each calendar quarter
based on the balance of unpaid accrued interest as of (and including) the last
day of the preceding calendar quarter. Interest will be credited on the first
day of the calendar quarter following the calendar quarter in which it accrued.
The first date on which interest will accrue on the balance of unpaid accrued
interest shall be the first day of the first calendar quarter after interest on
the principal balance commences accruing. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months. For purposes hereof,
January 1, April 1, July 1 and October 1 shall be the first days of the calendar
quarters.
2. Method of Payment. Until maturity, the Company will accrue interest
on the Debentures in each calendar quarter and reflect such accrued interest in
its records for the account of the persons who are registered holders of
Debentures at the close of business on the tenth day of the second month of the
calendar quarter in which such interest is accruing. Holders must surrender
Debentures to a Paying Agent to collect accrued interest and principal payments.
The Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
The Company may, however, pay principal and interest by its check payable in
such money. It may mail payments to a holder's registered address.
3. Paying Agent and Registrar. Initially, the Company will act as
Paying Agent. The Bank of New York, a New York banking corporation, will act as
Registrar and will authenticate the Debentures. The Company may change any
Paying Agent, Registrar or co-Registrar without notice.
4. Indenture. This Debenture is one of a duly authorized series of
Debentures issued by the Company under an Indenture dated as of December 1, 1998
(the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). The term "Debentures" being used herein refers to all Maturities of
Debentures issued under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. Reference is hereby made to
the Indenture for a description of the rights, obligations, duties and
immunities of the Trustee and the Debentureholders and for the terms and
conditions upon which the Debentures are and are to be issued. The Debentures
are general unsecured obligations of the Company limited to the aggregate
principal amount of $5,400,000 of which a maximum of $1,400,000 will have a
maturity date of January 1, 2001, a maximum of $1,400,000 will have a maturity
date of January 1, 2003, and a maximum of $2,600,000 will have a maturity date
of January 1, 2005.
A-2
<PAGE>
5. Optional Redemption. The Company may at its option redeem the
Debentures of any Maturity in whole or in part at any time. The redemption price
of Debentures due January 1, 2001 will be equal to the face amount of the
Debentures to be redeemed.
6. Selection and Notice of Redemption. If less than all of the
Debentures of any Maturity are to be redeemed, the Registrar shall select the
Debentures to be redeemed by such method as the Registrar shall deem fair and
appropriate, or if the Debentures are listed on a national securities exchange,
in accordance with the rules of such exchange. The Registrar shall make the
selection from the Debentures outstanding and not previously called for
redemption. The Registrar may select for redemption portions (equal to $10,000
or any integral multiple thereof) of the principal amount of Debentures that
have denominations larger than $10,000. Provisions of the Indenture that apply
to Debentures called for redemption also apply to portions of Debentures called
for redemption. Notice of redemption will be mailed at least 30 days but not
more than 90 days before the redemption date to each holder of Debentures to be
redeemed at his registered address. On and after the redemption date, interest
ceases to accrue on Debentures or portions thereof called for redemption.
7. Denominations, Transfer, Exchange. The Debentures are issuable in
registered form without coupons in denominations of $10,000 and integral
multiples of $10,000. A holder may transfer or exchange Debentures in accordance
with the Indenture. A Debenture containing a particular CUSIP Number may not be
exchanged for a Debenture containing another CUSIP Number. The Registrar may
require a holder, among other things, to furnish appropriate endorsements and
transfer documents, and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not transfer or exchange any Debenture or
portion of a Debenture selected for redemption, or transfer or exchange any
Debentures for a period of 15 days before a selection of Debentures to be
redeemed.
8. Persons Deemed Owners. The registered holder of a Debenture may be
treated as the owner of it for all purposes.
9. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company, if the Company requests such repayment within one year
after such two year period that such money remains unclaimed. If such unclaimed
money is so paid back to the Company, thereafter, holders entitled to the money
must look to the Company for payment as general creditors, unless an applicable
abandoned property law designates another person. If such unclaimed money is not
so paid back to the Company, it may be disposed of by the Trustee in accordance
with applicable law.
10. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Debentures may be amended or supplemented, and any past default
or compliance with any provision may be waived, with the consent of the holders
of a majority in principal amount of the outstanding Debentures. Without the
consent of any Debentureholder, the Company may amend or supplement the
Indenture or the Debentures to cure any ambiguity, omission, defect or
inconsistency, to comply with Article Five of the Indenture (providing for the
assumption of the obligations of the Company under the Indenture by a successor
corporation), or to make any change that does not adversely affect the rights of
any Debentureholder.
A-3
<PAGE>
11. Defaults and Remedies. The Indenture provides that the Trustee
will give the Debentureholders notice of an uncured Default known to it, within
90 days after the occurrence of an Event of Default (as defined in the
Indenture), or as soon as practicable after it learns of an Event of Default
which occurred more than 90 days beforehand; provided that, except in the case
of Default in the payment of principal of or interest on any of the Debentures
or any amount due on redemption, the Trustee may withhold such notice if it in
good faith determines that the withholding of such notice is in the interest of
the Debentureholders. In case an Event of Default occurs and is continuing, the
Trustee or the holders of not less than 25% of aggregate principal amount of the
Debentures then outstanding, by notice in writing to the Company (and to the
Trustee if given by the Debentureholders), may declare the principal of and all
accrued interest on all the Debentures to be due and payable immediately. Such
declaration may be rescinded by holders of a majority in principal amount of the
Debentures if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived and if the rescission would not conflict with any judgment or decree.
The Indenture requires the Company to file periodic reports with the Trustee as
to the absence of defaults.
12. Subordination. The indebtedness evidenced by all of the Debentures
is, to the extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Debenture is issued subject to such provisions of the Indenture, and each holder
of this Debenture by accepting same, agrees to and shall be bound by such
provisions. "Senior Indebtedness" means Indebtedness of the Company outstanding
at any time, whether outstanding on the date hereof or hereafter created, which
(i) is secured, in whole or in part, by any asset or assets owned by the Company
or a Subsidiary, or (ii) arises from unsecured borrowings by the Company from a
commercial bank, a savings bank, a savings and loan association, an insurance
company, a company whose securities are traded in a national securities market,
or any wholly-owned subsidiary of any of the foregoing, or (iii) arises from
unsecured borrowings by the Company from any pension plan (as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended), or
(iv) arises from borrowings by the Company which are evidenced by commercial
paper, or (v) other unsecured borrowings by the Company which are subordinate to
Indebtedness of a type described in clauses (i), (ii) or (iv) above if,
immediately after the issuance thereof, the total capital, surplus and retained
earnings of the Company exceed the aggregate of the outstanding principal amount
of such borrowings, or (vi) is a guarantee or other liability of the Company of
or with respect to Indebtedness of a Subsidiary of a type described in any of
clauses (ii), (iii) or (iv) above.
13. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Debentures or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Debentureholder by accepting a Debenture waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Debentures.
A-4
<PAGE>
15. Authentication. This Debenture shall not be valid until the
Registrar signs the certificate of authentication on the other side of this
Debenture.
16. Abbreviations. Customary abbreviations may be used in the name of
the Debentureholder or an assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
The Company will furnish to any Debentureholder upon written request
and without charge a copy of the Indenture. Requests may be made to Intervest
Corporation of New York, 10 Rockefeller Plaza, Suite 1015, New York, New York
10020-1903.
A-5
<PAGE>
ASSIGNMENT
If you want to assign this Debenture, fill in the form below and have your
signature guaranteed by a commercial bank or trust company or a member firm of
any national securities exchange registered under the Securities Exchange Act of
1934.
I or we assign and transfer this Debenture to
- ----------------------------------------------------------
(Please insert assignee's social security or tax identification number)
- ----------------------------------------------
- ----------------------------------------------
- ----------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Date: ___________________ Your signature: ________________________________
------------------------------
(Sign exactly as your name appears on
the other side of this Debenture)
Signature Guarantee: ___________________________
A-6
<PAGE>
Exhibit B
---------
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") OR UNDER ANY APPLICABLE STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF EFFECTIVE REGISTRATION UNDER THE ACT OR
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER OR SUCH STATE SECURITIES LAW.
(FORM OF ACCRUAL DEBENTURE MATURING January 1, 2003)
Number RA(__________/03)- $
INTERVEST CORPORATION OF NEW YORK
Series 11/10/98 Debenture due January 1, 2003
INTERVEST CORPORATION OF NEW YORK, a corporation duly organized and
existing under the laws of the State of New York (the "Company"), promises to
pay to or registered assigns the principal sum of
________________________________________ Dollars on January 1, 2003, together
with interest accruing on principal at eight and one-half percent (8 1/2%) per
annum, plus interest accruing each calendar quarter on the balance of interest
accrued as of (and including) the last day of the preceding calendar quarter at
eight and one-half percent (8 1/2%) per annum, and with all accrued interest
payable with the principal sum on January 1, 2003. The provisions on the back of
this certificate are incorporated as if set forth on the face of the
certificate.
Record Dates:
The tenth day of the second month of the
calendar quarter
DATED:
Authenticated to be one of the
Debentures described in the
Indenture referred to herein:
THE BANK OF NEW YORK, as INTERVEST CORPORATION OF NEW YORK
Registrar
By: _______________________ (Seal) By: ___________________________
Authorized Signatory President
By: __________________________
Secretary
B-1
<PAGE>
(REVERSE OF DEBENTURE)
Series 11/10/98 Debenture due January 1, 2003
1. Interest. The Company promises to pay interest on the principal
amount of this Debenture and interest on the balance of unpaid accrued interest
at the rate per annum shown above. Interest will accrue on principal from the
fifth day preceding the closing date.
All interest will accrue quarterly but not be paid until maturity, at which
time all unpaid accrued interest will be payable together with the principal
amount. Interest on unpaid accrued interest will accrue each calendar quarter
based on the balance of unpaid accrued interest as of (and including) the last
day of the preceding calendar quarter. Interest will be credited on the first
day of the calendar quarter following the calendar quarter in which it accrued.
The first date on which interest will accrue on the balance of unpaid accrued
interest shall be the first day of the first calendar quarter after interest on
the principal balance commences accruing. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months. For purposes hereof,
January 1, April 1, July 1 and October 1 shall be the first days of the calendar
quarters.
2. Method of Payment. Until maturity, the Company will accrue interest
on the Debentures in each calendar quarter and reflect such accrued interest in
its records for the account of the persons who are registered holders of
Debentures at the close of business on the tenth day of the second month of the
calendar quarter in which such interest is accruing. Holders must surrender
Debentures to a Paying Agent to collect accrued interest and principal payments.
The Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
The Company may, however, pay principal and interest by its check payable in
such money. It may mail payments to a holder's registered address.
3. Paying Agent and Registrar. Initially, the Company will act as
Paying Agent. The Bank of New York, a New York banking corporation, will act as
Registrar and will authenticate the Debentures. The Company may change any
Paying Agent, Registrar or co-Registrar without notice.
4. Indenture. This Debenture is one of a duly authorized series of
Debentures issued by the Company under an Indenture dated as of December 1, 1998
(the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). The term "Debentures" being used herein refers to all Maturities of
Debentures issued under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. Reference is hereby made to
the Indenture for a description of the rights, obligations, duties and
immunities of the Trustee and the Debentureholders and for the terms and
conditions upon which the Debentures are and are to be issued. The Debentures
are general unsecured obligations of the Company limited to the aggregate
principal amount of $5,400,000 of which a maximum of $1,400,000 will have a
maturity date of January 1, 2001, a maximum of $1,400,000 will have a maturity
date of January 1, 2003, and a maximum of $2,600,000 will have a maturity date
of January 1, 2005.
B-2
<PAGE>
5. Optional Redemption. The Company may at its option redeem the
Debentures of any Maturity in whole or in part at any time. The redemption price
for Debentures due January 1, 2003 will be equal to (i) the face amount of the
Debentures to be redeemed plus a 1% premium if the date of redemption is prior
to January 1, 2001, and (ii) the face amount of the Debentures to be redeemed if
the date of redemption is on or after January 1, 2001.
6. Selection and Notice of Redemption. If less than all of the
Debentures of any Maturity are to be redeemed, the Registrar shall select the
Debentures to be redeemed by such method as the Registrar shall deem fair and
appropriate, or if the Debentures are listed on a national securities exchange,
in accordance with the rules of such exchange. The Registrar shall make the
selection from the Debentures outstanding and not previously called for
redemption. The Registrar may select for redemption portions (equal to $10,000
or any integral multiple thereof) of the principal amount of Debentures that
have denominations larger than $10,000. Provisions of the Indenture that apply
to Debentures called for redemption also apply to portions of Debentures called
for redemption. Notice of redemption will be mailed at least 30 days but not
more than 90 days before the redemption date to each holder of Debentures to be
redeemed at his registered address. On and after the redemption date, interest
ceases to accrue on Debentures or portions thereof called for redemption.
7. Optional Repurchase. Commencing in the year 2001, a Holder will
have the option to require the Company to purchase the Debenture for the face
amount plus accrued interest, provided that a request for repurchase,
accompanied by the Debenture and a written and duly executed instrument of
transfer is submitted to the Company no earlier than May 1 and no later than May
31. Repurchases shall be made once each year as of July 1 and are subject to the
limitations set out in the Indenture.
8. Denominations, Transfer, Exchange. The Debentures are issuable in
registered form without coupons in denominations of $10,000 and integral
multiples of $10,000. A holder may transfer or exchange Debentures in accordance
with the Indenture. A Debenture containing a particular CUSIP Number may not be
exchanged for a Debenture containing another CUSIP Number. The Registrar may
require a holder, among other things, to furnish appropriate endorsements and
transfer documents, and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not transfer or exchange any Debenture or
portion of a Debenture selected for redemption, or transfer or exchange any
Debentures for a period of 15 days before a selection of Debentures to be
redeemed.
9. Persons Deemed Owners. The registered holder of a Debenture may be
treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company, if the Company requests such repayment within one year
after such two year period that such money remains unclaimed. If such unclaimed
money is so paid back to the Company, thereafter, holders entitled to the money
must look to the Company for payment as general creditors, unless an applicable
abandoned property law designates another person. If such unclaimed money is not
so paid back to the Company, it may be disposed of by the Trustee in accordance
with applicable law.
B-3
<PAGE>
11. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Debentures may be amended or supplemented, and any past default
or compliance with any provision may be waived, with the consent of the holders
of a majority in principal amount of the outstanding Debentures. Without the
consent of any Debentureholder, the Company may amend or supplement the
Indenture or the Debentures to cure any ambiguity, omission, defect or
inconsistency, to comply with Article Five of the Indenture (providing for the
assumption of the obligations of the Company under the Indenture by a successor
corporation), or to make any change that does not adversely affect the rights of
any Debentureholder.
12. Defaults and Remedies. The Indenture provides that the Trustee
will give the Debentureholders notice of an uncured Default known to it, within
90 days after the occurrence of an Event of Default (as defined in the
Indenture), or as soon as practicable after it learns of an Event of Default
which occurred more than 90 days beforehand; provided that, except in the case
of Default in the payment of principal of or interest on any of the Debentures
or any amount due on redemption, the Trustee may withhold such notice if it in
good faith determines that the withholding of such notice is in the interest of
the Debentureholders. In case an Event of Default occurs and is continuing, the
Trustee or the holders of not less than 25% of aggregate principal amount of the
Debentures then outstanding, by notice in writing to the Company (and to the
Trustee if given by the Debentureholders), may declare the principal of and all
accrued interest on all the Debentures to be due and payable immediately. Such
declaration may be rescinded by holders of a majority in principal amount of the
Debentures if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived and if the rescission would not conflict with any judgment or decree.
The Indenture requires the Company to file periodic reports with the Trustee as
to the absence of defaults.
13. Subordination. The indebtedness evidenced by all of the Debentures
is, to the extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Debenture is issued subject to such provisions of the Indenture, and each holder
of this Debenture by accepting same, agrees to and shall be bound by such
provisions. "Senior Indebtedness" means Indebtedness of the Company outstanding
at any time, whether outstanding on the date hereof or hereafter created, which
(i) is secured, in whole or in part, by any asset or assets owned by the Company
or a Subsidiary, or (ii) arises from unsecured borrowings by the Company from a
commercial bank, a savings bank, a savings and loan association, an insurance
company, a company whose securities are traded in a national securities market,
or any wholly-owned subsidiary of any of the foregoing, or (iii) arises from
unsecured borrowings by the Company from any pension plan (as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended), or
(iv) arises from borrowings by the Company which are evidenced by commercial
paper, or (v) other unsecured borrowings by the Company which are subordinate to
Indebtedness of a type described in clauses (i), (ii) or (iv) above if,
immediately after the issuance thereof, the total capital, surplus and retained
earnings of the Company exceed the aggregate of the outstanding principal amount
of such borrowings, or (vi) is a guarantee or other liability of the Company of
or with respect to Indebtedness of a Subsidiary of a type described in any of
clauses (ii), (iii) or (iv) above.
B-4
<PAGE>
14. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
15. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Debentures or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Debentureholder by accepting a Debenture waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Debentures.
16. Authentication. This Debenture shall not be valid until the
Registrar signs the certificate of authentication on the other side of this
Debenture.
17. Abbreviations. Customary abbreviations may be used in the name of
the Debentureholder or an assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
The Company will furnish to any Debentureholder upon written request
and without charge a copy of the Indenture. Requests may be made to Intervest
Corporation of New York, 10 Rockefeller Plaza, Suite 1015, New York, New York
10020-1903.
B-5
<PAGE>
ASSIGNMENT
If you want to assign this Debenture, fill in the form below and have your
signature guaranteed by a commercial bank or trust company or a member firm of
any national securities exchange registered under the Securities Exchange Act of
1934.
I or we assign and transfer this Debenture to
- ----------------------------------------------------------
(Please insert assignee's social security or tax identification number)
- ----------------------------------------------
- ----------------------------------------------
- ----------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________________________
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Date: ___________________ Your signature: ________________________________
------------------------------
(Sign exactly as your name appears on
the other side of this Debenture)
Signature Guarantee: ___________________________
B-6
<PAGE>
Exhibit C
---------
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") OR UNDER ANY APPLICABLE STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF EFFECTIVE REGISTRATION UNDER THE ACT OR
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER OR SUCH STATE SECURITIES LAW.
(FORM OF ACCRUAL DEBENTURE MATURING January 1, 2005)
Number RA(__________/05)- $
INTERVEST CORPORATION OF NEW YORK
Series 11/10/98 Debenture due January 1, 2005
INTERVEST CORPORATION OF NEW YORK, a corporation duly organized and
existing under the laws of the State of New York (the "Company"), promises to
pay to or registered assigns the principal sum of
________________________________________ Dollars on January 1, 2005, together
with interest accruing on principal at nine percent (9%) per annum, plus
interest accruing each calendar quarter on the balance of interest accrued as of
(and including) the last day of the preceding calendar quarter at nine percent
(9%) per annum, and with all accrued interest payable with the principal sum on
January 1, 2005. The provisions on the back of this certificate are incorporated
as if set forth on the face of the certificate.
Record Dates:
The tenth day of the second month of the
calendar quarter
DATED:
Authenticated to be one of the
Debentures described in the
Indenture referred to herein:
THE BANK OF NEW YORK, as INTERVEST CORPORATION OF NEW YORK
Registrar
By: _______________________ (Seal) By: ___________________________
Authorized Signatory President
By: __________________________
Secretary
C-1
<PAGE>
(REVERSE OF DEBENTURE)
Series 11/10/98 Debenture due January 1, 2005
1. Interest. The Company promises to pay interest on the principal
amount of this Debenture and interest on the balance of unpaid accrued interest
at the rate per annum shown above. Interest will accrue on principal from the
fifth day preceding the closing date.
All interest will accrue quarterly but not be paid until maturity, at which
time all unpaid accrued interest will be payable together with the principal
amount. Interest on unpaid accrued interest will accrue each calendar quarter
based on the balance of unpaid accrued interest as of (and including) the last
day of the preceding calendar quarter. Interest will be credited on the first
day of the calendar quarter following the calendar quarter in which it accrued.
The first date on which interest will accrue on the balance of unpaid accrued
interest shall be the first day of the first calendar quarter after interest on
the principal balance commences accruing. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months. For purposes hereof,
January 1, April 1, July 1 and October 1 shall be the first days of the calendar
quarters.
2. Method of Payment. Until maturity, the Company will accrue interest
on the Debentures in each calendar quarter and reflect such accrued interest in
its records for the account of the persons who are registered holders of
Debentures at the close of business on the tenth day of the second month of the
calendar quarter in which such interest is accruing. Holders must surrender
Debentures to a Paying Agent to collect accrued interest and principal payments.
The Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
The Company may, however, pay principal and interest by its check payable in
such money. It may mail payments to a holder's registered address.
3. Paying Agent and Registrar. Initially, the Company will act as
Paying Agent. The Bank of New York, a New York banking corporation, will act as
Registrar and will authenticate the Debentures. The Company may change any
Paying Agent, Registrar or co-Registrar without notice.
4. Indenture. This Debenture is one of a duly authorized series of
Debentures issued by the Company under an Indenture dated as of December 1, 1998
(the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). The term "Debentures" being used herein refers to all Maturities of
Debentures issued under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. Reference is hereby made to
the Indenture for a description of the rights, obligations, duties and
immunities of the Trustee and the Debentureholders and for the terms and
conditions upon which the Debentures are and are to be issued. The Debentures
are general unsecured obligations of the Company limited to the aggregate
principal amount of $5,400,000 of which a maximum of $1,400,000 will have a
maturity date of January 1, 2001, a maximum of $1,400,000 will have a maturity
date of January 1, 2003, and a maximum of $2,600,000 will have a maturity date
of January 1, 2005.
C-2
<PAGE>
5. Optional Redemption. The Company may at its option redeem the
Debentures of any Maturity in whole or in part at any time. The redemption price
for Debentures due January 1, 2005 will be equal to: (i) the face amount of the
Debentures to be redeemed plus a 1% premium if the date of redemption is prior
to January 1, 2001, and (ii) the face amount of the Debentures to be redeemed if
the date of redemption is on or after January 1, 2001.
6. Selection and Notice of Redemption. If less than all of the
Debentures of any Maturity are to be redeemed, the Registrar shall select the
Debentures to be redeemed by such method as the Registrar shall deem fair and
appropriate, or if the Debentures are listed on a national securities exchange,
in accordance with the rules of such exchange. The Registrar shall make the
selection from the Debentures outstanding and not previously called for
redemption. The Registrar may select for redemption portions (equal to $10,000
or any integral multiple thereof) of the principal amount of Debentures that
have denominations larger than $10,000. Provisions of the Indenture that apply
to Debentures called for redemption also apply to portions of Debentures called
for redemption. Notice of redemption will be mailed at least 30 days but not
more than 90 days before the redemption date to each holder of Debentures to be
redeemed at his registered address. On and after the redemption date, interest
ceases to accrue on Debentures or portions thereof called for redemption.
7. Optional Repurchase. Commencing in the year 2001, a Holder will
have the option to require the Company to purchase the Debenture for the face
amount plus accrued interest, provided that a request for repurchase,
accompanied by the Debenture and a written and duly executed instrument of
transfer is submitted to the Company no earlier than May 1 and no later than May
31. Repurchases shall be made once each year as of July 1 and are subject to the
limitations set out in the Indenture.
8. Denominations, Transfer, Exchange. The Debentures are issuable in
registered form without coupons in denominations of $10,000 and integral
multiples of $10,000. A holder may transfer or exchange Debentures in accordance
with the Indenture. A Debenture containing a particular CUSIP Number may not be
exchanged for a Debenture containing another CUSIP Number. The Registrar may
require a holder, among other things, to furnish appropriate endorsements and
transfer documents, and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not transfer or exchange any Debenture or
portion of a Debenture selected for redemption, or transfer or exchange any
Debentures for a period of 15 days before a selection of Debentures to be
redeemed.
9. Persons Deemed Owners. The registered holder of a Debenture may be
treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company, if the Company requests such repayment within one year
after such two year period that such money remains unclaimed. If such unclaimed
money is so paid back to the Company, thereafter, holders entitled to the money
must look to the Company for payment as general creditors, unless an applicable
abandoned property law designates another person. If such unclaimed money is not
so paid back to the Company, it may be disposed of by the Trustee in accordance
with applicable law.
C-3
<PAGE>
11. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Debentures may be amended or supplemented, and any past default
or compliance with any provision may be waived, with the consent of the holders
of a majority in principal amount of the outstanding Debentures. Without the
consent of any Debentureholder, the Company may amend or supplement the
Indenture or the Debentures to cure any ambiguity, omission, defect or
inconsistency, to comply with Article Five of the Indenture (providing for the
assumption of the obligations of the Company under the Indenture by a successor
corporation), or to make any change that does not adversely affect the rights of
any Debentureholder.
12. Defaults and Remedies. The Indenture provides that the Trustee
will give the Debentureholders notice of an uncured Default known to it, within
90 days after the occurrence of an Event of Default (as defined in the
Indenture), or as soon as practicable after it learns of an Event of Default
which occurred more than 90 days beforehand; provided that, except in the case
of Default in the payment of principal of or interest on any of the Debentures
or any amount due on redemption, the Trustee may withhold such notice if it in
good faith determines that the withholding of such notice is in the interest of
the Debentureholders. In case an Event of Default occurs and is continuing, the
Trustee or the holders of not less than 25% of aggregate principal amount of the
Debentures then outstanding, by notice in writing to the Company (and to the
Trustee if given by the Debentureholders), may declare the principal of and all
accrued interest on all the Debentures to be due and payable immediately. Such
declaration may be rescinded by holders of a majority in principal amount of the
Debentures if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived and if the rescission would not conflict with any judgment or decree.
The Indenture requires the Company to file periodic reports with the Trustee as
to the absence of defaults.
13. Subordination. The indebtedness evidenced by all of the Debentures
is, to the extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Debenture is issued subject to such provisions of the Indenture, and each holder
of this Debenture by accepting same, agrees to and shall be bound by such
provisions. "Senior Indebtedness" means Indebtedness of the Company outstanding
at any time, whether outstanding on the date hereof or hereafter created, which
(i) is secured, in whole or in part, by any asset or assets owned by the Company
or a Subsidiary, or (ii) arises from unsecured borrowings by the Company from a
commercial bank, a savings bank, a savings and loan association, an insurance
company, a company whose securities are traded in a national securities market,
or any wholly-owned subsidiary of any of the foregoing, or (iii) arises from
unsecured borrowings by the Company from any pension plan (as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended), or
(iv) arises from borrowings by the Company which are evidenced by commercial
paper, or (v) other unsecured borrowings by the Company which are subordinate to
Indebtedness of a type described in clauses (i), (ii) or (iv) above if,
immediately after the issuance thereof, the total capital, surplus and retained
earnings of the Company exceed the aggregate of the outstanding principal amount
of such borrowings, or (vi) is a guarantee or other liability of the Company of
or with respect to Indebtedness of a Subsidiary of a type described in any of
clauses (ii), (iii) or (iv) above.
C-4
<PAGE>
14. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
15. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Debentures or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Debentureholder by accepting a Debenture waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Debentures.
16. Authentication. This Debenture shall not be valid until the
Registrar signs the certificate of authentication on the other side of this
Debenture.
17. Abbreviations. Customary abbreviations may be used in the name of
the Debentureholder or an assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
The Company will furnish to any Debentureholder upon written request
and without charge a copy of the Indenture. Requests may be made to Intervest
Corporation of New York, 10 Rockefeller Plaza, Suite 1015, New York, New York
10020-1903.
C-5
<PAGE>
ASSIGNMENT
If you want to assign this Debenture, fill in the form below and have your
signature guaranteed by a commercial bank or trust company or a member firm of
any national securities exchange registered under the Securities Exchange Act of
1934.
I or we assign and transfer this Debenture to
- ----------------------------------------------------------
(Please insert assignee's social security or tax identification number)
- ----------------------------------------------
- ----------------------------------------------
- ----------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________________________________________
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Date: ___________________ Your signature: ________________________________
------------------------------
(Sign exactly as your name appears on
the other side of this Debenture)
Signature Guarantee: ___________________________
C-6
<PAGE>
(Amendment to Employment Agreement)
SECRETARY'S CERTIFICATE
The undersigned, Lawrence G. Bergman, hereby certifies that he is duly
qualified and elected Secretary of Intervest Corporation of New York, a New York
corporation (the "Corporation") and that, as such, he is authorized to execute
this certificate on behalf of the Corporation, and further certifies that
attached hereto as Exhibit A is a true and correct copy of certain resolutions
duly adopted by the Executive Committee of the Board of Directors of the
Corporation on August 3, 1998, which resolutions have not been amended, altered
or repealed, and remain in full force and effect on the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this certificate the 18th
day of March, 1999.
-------------------
Lawrence G. Bergman
EXHIBIT A
RESOLVED, that the Employment Agreement dated as of July 1, 1995 between
this Corporation and Jerome Dansker be modified so that the following paragraph
is added at the end of Section 3(a) (Compensation: Benefits/Salary), and it
hereby is approved, and any officer of the Corporation, be and they hereby are
authorized to execute, in the name and in behalf of this Corporation, such
modification to the Employment Agreement:
"In addition to the aforesaid salary, Dansker shall receive additional
salary of $1,000 per month for each $10,000,000 or part thereof of gross
assets of the Corporation in excess of $110,000,000, which level of gross
assets shall be determined at the end of each month. Such monthly increases
to go into effect the month following the attainment of the corresponding
level of gross assets and which shall become a permanent part of Dansker's
salary, regardless of subsequent determinations of gross assets.
The annual increases in salary as set forth in the first paragraph of this
section shall also apply to such additional salary received during the time
period used to compute such increases".
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
(This schedule contains information extracted from form 10-K at December 31,
1998, and is qulified in its entirety by reference to such financial
statements.)
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 27,426
<SECURITIES> 0
<RECEIVABLES> 67,533
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 99,887
<CURRENT-LIABILITIES> 0
<BONDS> 80,300
0
0
<COMMON> 2,100
<OTHER-SE> 9,468
<TOTAL-LIABILITY-AND-EQUITY> 99,887
<SALES> 0
<TOTAL-REVENUES> 12,093
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 944
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 9,401
<INCOME-PRETAX> 1,748
<INCOME-TAX> 801
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 947
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
<PAGE>
Exhibit 22
Subsidiaries
State of
Name Incorporation
- ---- -------------
Intervest Distribution Corporation New York
Intervest Realty Servicing Corporation New York
