Exhibit 4.a
================================================================================
AVATEX FUNDING, INC.
AND
AVATEX CORPORATION
---------------------
6.75% Notes due 2002
---------------------
Form of Indenture
---------------------
Dated as of __________ __, 1999
---------------------
XXXXX FARGO & COMPANY
Trustee
================================================================================
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE........................................1
Section 1.01. Definitions..................................................................1
Section 1.02. Other Definitions............................................................6
Section 1.03. Incorporation by Reference of Trust Indenture Act............................7
Section 1.04. Rules of Construction........................................................7
Section 1.05. Compliance Certificates and Opinions.........................................7
Section 1.06. Form of Documents Delivered to Trustee.......................................8
Section 1.07. Acts of Holders..............................................................9
ARTICLE 2 THE NOTES........................................................................10
Section 2.01. Form and Dating.............................................................10
Section 2.02. Execution and Authentication................................................11
Section 2.03. Registrar and Paying Agent..................................................12
Section 2.04. Paying Agent to Hold Money in Trust.........................................12
Section 2.05. Lists of Holders of the Notes...............................................13
Section 2.06. Transfer and Exchange.......................................................13
Section 2.07. Replacement Notes...........................................................15
Section 2.08. Outstanding Notes...........................................................16
Section 2.09. Treasury Notes..............................................................16
Section 2.10. Temporary Notes.............................................................16
Section 2.11. Cancellation................................................................17
Section 2.12. Record Date.................................................................17
Section 2.13. CUSIP Number................................................................17
Section 2.14. Computation of Interest.....................................................17
ARTICLE 3 REDEMPTION AND PREPAYMENT........................................................17
Section 3.01. Election to Redeem; Notice to Trustee.......................................17
Section 3.02. Selection by Trustee of Notes to be Redeemed................................18
Section 3.03. Notice of Redemption........................................................18
Section 3.04. Effect of Notice of Redemption..............................................19
Section 3.05. Deposit of Redemption Price.................................................19
Section 3.06. Notes Payable on Redemption Date............................................20
Section 3.07. Notes Redeemed in Part......................................................20
TABLE OF CONTENTS
(continued)
Page
Section 3.08. Optional Redemption.........................................................20
Section 3.09. Mandatory Redemption........................................................21
Section 3.10. Option to Purchase Upon Extraordinary Dividend..............................21
ARTICLE 4 COVENANTS........................................................................23
Section 4.01. Payment of Principal and Interest...........................................23
Section 4.02. Maintenance of Office or Agency.............................................23
Section 4.03. Money for Payments to Be Held in Trust......................................24
Section 4.04. Reports.....................................................................25
Section 4.05. Statement as to Compliance; Notice of Default...............................25
Section 4.06. Payment of Taxes and Other Claims...........................................26
Section 4.07. Stay, Extension, Usury Laws.................................................26
Section 4.08. Corporate Existence; Corporate Actions......................................26
Section 4.09. Limitation on Incurrence of Indebtedness....................................28
Section 4.10. Limitations on Liens........................................................29
ARTICLE 5 SUCCESSORS.......................................................................29
Section 5.01. Merger, Consolidation, or Sale of Assets....................................29
Section 5.02. Successor Corporation Substituted...........................................30
ARTICLE 6 DEFAULTS AND REMEDIES............................................................30
Section 6.01. Events of Default and Notice Thereof........................................30
Section 6.02. Acceleration................................................................31
Section 6.03. Other Remedies..............................................................31
Section 6.04. Waiver of Past Defaults.....................................................32
Section 6.05. Control by Majority.........................................................32
Section 6.06. Limitation on Suits.........................................................32
Section 6.07. Rights of Holders of Notes to Receive Payment...............................33
Section 6.08. Collection Suit by Trustee..................................................33
Section 6.09. Trustee May File Proofs of Claim............................................33
Section 6.10. Priorities..................................................................34
Section 6.11. Undertaking for Costs.......................................................34
ARTICLE 7 TRUSTEE..........................................................................34
Section 7.01. Duties of Trustee...........................................................34
ii
TABLE OF CONTENTS
(continued)
Page
Section 7.02. Rights of Trustee...........................................................36
Section 7.03. Individual Rights of Trustee................................................36
Section 7.04. Trustee's Disclaimer........................................................36
Section 7.05. Notice of Defaults..........................................................37
Section 7.06. Reports by Trustee to Holders of the Notes..................................37
Section 7.07. Compensation and Indemnity..................................................37
Section 7.08. Replacement of Trustee......................................................38
Section 7.09. Successor Trustee by Merger, Etc............................................39
Section 7.10. Eligibility; Disqualification...............................................40
Section 7.11. Preferential Collection of Claims Against the Company.......................40
Section 7.12. Rights of Holders with Respect to Time, Method and Place....................40
ARTICLE 8 AMENDMENT, SUPPLEMENT AND WAIVER.................................................40
Section 8.01. Without Consent of Holders of Notes.........................................40
Section 8.02. With Consent of Holders of Notes............................................41
Section 8.03. Compliance With TIA.........................................................43
Section 8.04. Revocation and Effect of Consents...........................................43
Section 8.05. Notation on or Exchange of Notes............................................43
Section 8.06. Trustee to Sign Amendments, Etc.............................................43
ARTICLE 9 COLLATERAL AND SECURITY..........................................................44
Section 9.01. Security Agreement..........................................................44
Section 9.02. Recording and Opinions......................................................44
Section 9.03. Release of Collateral.......................................................45
Section 9.04. Certificates of the Company.................................................45
Section 9.05. Certificates of the Trustee.................................................46
Section 9.06. Authorization of Actions to be Taken by the Trustee under the Security
Agreement...................................................................46
Section 9.07. Authorization of Receipt of Funds by the Trustee Under the Security Agreement46
Section 9.08. Termination of Security Interest............................................47
ARTICLE 10 GUARANTEE OF NOTES...............................................................47
Section 10.01. Parent Guarantee............................................................47
iii
TABLE OF CONTENTS
(continued)
Page
Section 10.02. Execution and Delivery of Parent Guarantee..................................48
Section 10.03. Guarantor May Consolidate, Etc., on Certain Terms...........................48
Section 10.04. Limitation on Guarantor Liability...........................................49
Section 10.05. "Trustee" to Include Paying Agent...........................................50
ARTICLE 11 SATISFACTION AND DISCHARGE.......................................................50
Section 11.01. Satisfaction and Discharge of Indenture.....................................50
Section 11.02. Application of Trust Money..................................................51
ARTICLE 12 MISCELLANEOUS....................................................................51
Section 12.01. Conflict of any Provision of Indenture with TIA.............................51
Section 12.02. Notices.....................................................................51
Section 12.03. Communication by Holders of Notes with Other Holders of Notes...............53
Section 12.04. Certificate and Opinion as to Conditions Precedent..........................53
Section 12.05. Legal Holidays..............................................................53
Section 12.06. No Personal Liability of Directors, Officers, Employees and Stockholders....53
Section 12.07. Governing Law...............................................................54
Section 12.08. No Adverse Interpretation of Other Agreements...............................54
Section 12.09. Successors and Assigns......................................................54
Section 12.10. Severability................................................................54
Section 12.11. Counterpart Originals.......................................................54
Section 12.12. Table of Contents, Headings, Etc............................................54
EXHIBITS
A - Form of Note
B - Form of Special Compliance Certificate
C - Form of Notation of Parent Guarantee on Note
D - Form of Supplemental Indenture to be Delivered by New Guarantor
E - Form of Security Agreement
iv
CROSS-REFERENCE TABLE*
[To be verified]
Trust Indenture
Act Section Indenture Section
310(a)(1).............................................................................. 7.10
(a)(2)............................................................................ 7.10
(a)(3)............................................................................ N.A.
(a)(4)............................................................................ N.A.
(a)(5)............................................................................ 7.10
(b)............................................................................... 7.10
(c)............................................................................... N.A.
311(a)................................................................................. 7.11
(b)............................................................................... 7.11
(c)............................................................................... N.A.
312(a)................................................................................. 2.05
(b)............................................................................... 13.03
(c)............................................................................... 13.03
313(a)................................................................................. 7.06
(b)(1)............................................................................ N.A.
(b)(2)............................................................................ 7.06; 7.07
(c)............................................................................... 7.06; 14.02
(d)............................................................................... 7.06
314(a)................................................................................. 4.04; 14.02
(b)............................................................................... N.A.
(c)(1)............................................................................ 13.04
(c)(2)............................................................................ 13.04
(c)(3)............................................................................ N.A.
(d)............................................................................... N.A.
(e)............................................................................... 1.05
(f)............................................................................... N.A.
315(a)................................................................................. 7.01
(b)............................................................................... 7.05; 14.02
(c)............................................................................... 7.01
(d)............................................................................... 7.01
(e)............................................................................... 6.11
316(a)(last sentence).................................................................. 2.09
(a)(1)(A)......................................................................... 6.05
(a)(1)(B)......................................................................... 6.04
(a)(2)............................................................................ N.A.
(b)............................................................................... 6.07
(c)............................................................................... 7.01
317(a)(1).............................................................................. 6.08
(a)(2)............................................................................ 6.09
(b)............................................................................... 2.04
318(a)................................................................................. 13.01
(b)............................................................................... N.A.
(c)............................................................................... 13.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
v
INDENTURE dated as of __________, 1999 among Avatex
Funding, Inc., a Delaware corporation (the "Company"), Avatex Corporation, a
Delaware corporation and the surviving corporation in the Merger (as defined
below) ("Avatex"), as guarantor, and [XXXXX FARGO & COMPANY], as trustee (the
"Trustee"). The Company and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 6.75%
Notes due 2002.
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
Set forth below are certain defined terms used in this
Indenture.
"Affiliate" of any specified Person means any other Person
which, directly or indirectly, controls, is controlled by or is under direct
or indirect common control with, such specified Person. 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;
provided that beneficial ownership of 10% or more of the voting securities of
a Person shall be deemed to be control, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
foreign, federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of such board of directors.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means, (a) in the case of a corporation,
corporate stock, (b) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (d) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Consolidated Net Worth" means, with respect to any Person
as of any date, the sum of (i) the consolidated equity of the common
stockholders of such Person and its consolidated Subsidiaries as of such date
plus (ii) the respective amounts reported on such Person's balance sheet as of
such date with respect to any series of preferred stock that by its terms is
not entitled to the payment of dividends unless such dividends may be declared
and paid only out of net earnings in respect of the year of such declaration
and payment, but only to the extent of any cash received by such Person upon
issuance of such preferred stock, and, in any event with respect to this
clause (ii), to the extent that any such series of preferred stock is not
treated or classified as a liability on such Person's balance sheet in
accordance with GAAP, less (x) all write-ups (other than write-ups resulting
from foreign currency translations and write-ups of tangible assets of a going
concern business made within 12 months after the acquisition of such business)
subsequent to the date of this Indenture in the book value of any asset owed
by such Person or a consolidated Subsidiary of such Person, and (y) all
unamortized debt discount and expenses and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Closing Date" means , 1999.
"Collateral Agent" means [Xxxxx Fargo & Company], in its
capacity as collateral agent under the Security Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" means Avatex Funding, Inc., a Delaware corporation.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 13.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of
time or the giving of notice or both would be an Event of Default.
"Depository" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section
2.03 hereof as the Depository with respect to the Notes, until a successor
shall have been appointed and become such pursuant to the applicable provision
of this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
2
"Extraordinary Dividend" means any dividend or other payment
or distribution declared by Phar-Mor to all holders of Phar-Mor Common Stock
other than a Regular Dividend.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Note" means a permanent global senior subordinated
note that contains the paragraph referred to in footnote 1 and the additional
schedule referred to in footnote 2 to the form of the Note attached hereto as
Exhibit A, and that is deposited with the Note Custodian and registered in the
name of the Depository.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States
of America is pledged.
"Guarantor" means Avatex, as guarantor of the Company's
payment of all principal of and interest on the Notes, and all other amounts
payable under the Notes or this Indenture, pursuant to the Parent Guarantee.
"Holder" means a Person in whose name a Note is registered.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Interest Payment Date" has the meaning assigned to such
term in paragraph 1 of the form of the Note attached hereto as Exhibit A.
"Issuance" means the issuance of the Notes by the Company
that are required to be issued in connection with the Merger pursuant to the
Merger Agreement and a registration statement on Form S-4 (Registration No.
333- , as amended) and the prospectus included therein.
"Legal Holiday" means a Saturday, Sunday or a day on which
banking institutions in the City of New York, the city where the principal
office of the Trustee is located, or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional
3
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
"Merger" means the merger of Xetava with and into Avatex
contemplated by, and pursuant to, the Merger Agreement.
"Merger Agreement" means that certain Amended and Restated
Agreement and Plan of Merger, dated as of June , 1999, by and between Avatex
and Xetava, as the same shall be amended, amended and restated, supplemented
or modified from time to time.
"Notes" means the Company's 6.75% Notes due 2002 issued in
compliance with this Indenture.
"Note Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any indebtedness, including the Notes.
"Officer" means, with respect to any Person, the Chairman,
Chief Executive Officer, the President, any Senior Vice President, the Chief
Financial Officer or any Vice President of such Person.
"Officer's Certificate" means a certificate signed on behalf
of the Company by an Officer of the Company that meets the requirements set
forth in Section 1.05 hereof.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company and who shall be reasonably acceptable to the
Trustee, in form and substance satisfactory to the Trustee. Each such opinion
shall include the statements provided for in TIA Section 314(e) to the extent
applicable.
"Parent Guarantee" means the guarantee of the Guarantor of
the Company's payment obligations under the Notes.
"Permitted Liens" means (i) Liens in favor of the Company;
(ii) Liens with respect to or contemplated by the Security Agreement and the
Subrogation Agreement; (iii) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith and diligently by appropriate proceedings and which are not being
foreclosed; (iv) statutory Liens of landlords and carriers', warehousemen's,
mechanics', suppliers', materialmen's, repairmen's, or other like Liens with
respect to amounts not yet delinquent or being contested in good faith and
diligently by appropriate proceedings; and (v) any other Liens that (a) are
not incurred in connection with the borrowing of money or the obtaining of
advances or credit by the Company and (b) do not in the aggregate materially
detract from the value of the property or materially impair the use thereof in
the operation of business by the Company, and, in each case under this clause
(v), are being contested in good faith and
4
diligently by appropriate proceedings; provided, however, that, with respect
to clauses (iv) and (v), to the extent any such Liens are on the Pledged
Collateral, such Liens are removed or released within 60 days after the
Company is notified of the existence thereof, or to the extent any such Liens
are not on the Pledged Collateral, such Liens are removed or released within
120 days after the Company is notified of the existence thereof.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Phar-Mor" means Phar-Mor, Inc., a Pennsylvania corporation,
including its successors.
"Phar-Mor Common Stock" means common stock, par value $0.01
per shares, of Phar-Mor, including any subdivision, combination or
reclassification thereof.
"Pledged Collateral" has the meaning assigned to such term
in the Security Agreement.
"Regular Dividend" means any regular quarterly cash dividend
declared by Phar-Mor to all holders of Phar-Mor Common Stock, other than a
quarterly cash dividend that exceeds the immediately preceding quarterly cash
dividend by 10%.
"Responsible Officer", when used with respect to the
Trustee, means any officer in the Corporate Trust Office of the Trustee and
also means, with respect to a particular corporate trust matter, any other
officer or employee to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Security Agreement" means that certain Pledge and Security
Agreement, dated as of the date hereof, among the Company, the Trustee, the
Collateral Agent and Avatex, substantially in the form of Exhibit E hereto, as
the same may be amended, amended and restated, supplemented or modified from
time to time.
"Security Documents" means the Security Agreement and all
related agreements, instruments, financing statements or other documents that
set forth or limit the Lien of the Trustee in the Pledged Collateral.
5
"Subrogation Agreement" means that certain Subrogation
Agreement, dated as of _______, 1999, by and between Xxxx X. Xxxxx, Xx., as
trustee under Chapter 7 of Title 11 of the United States Code of FoxMeyer
Corporation, FoxMeyer Drug Company, Healthcare Transportation System, Inc.,
Merchandise Coordinator Services Corporation, FoxMeyer Software, Inc. and
Health Mart, Inc. and their respective estates, as their interests may appear,
and the Trustee, as trustee under this Indenture and as Collateral Agent under
the Security Agreement, as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time.
"Subsidiary" means, with respect to any Person, (a) any
corporation, association or other business entity of which more than 50% of
the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (b) any partnership (i) the sole general
partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (ii) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Trustee" means the party named as such above unless and
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means such successor.
"Trustee Note" has the meaning assigned to such term in the
Subrogation Agreement.
"Xetava" means Xetava Corporation, a Delaware corporation and
wholly-owned subsidiary of Avatex.
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Act"................................................ 1.07
"DTC"................................................ 2.03
"Event of Default"................................... 6.01
"Extraordinary Dividend Offer"....................... 3.10
"Extraordinary Dividend Proceeds".................... 3.10
"incur".............................................. 4.12
"Offer Amount"....................................... 3.10
"Offer Period"....................................... 3.10
"Paying Agent"....................................... 2.03
6
"Purchase Date"...................................... 3.10
"Registrar".......................................... 2.03
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:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Company and any successor
obligors upon the Notes.
All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
Section 1.05. Compliance Certificates and Opinions.
(a) Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee, upon request by the Trustee, an Officer's
Certificate stating that all conditions precedent, if any, provided for in
this Indenture (including any covenant compliance with
7
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
(b) On each Interest Payment Date, the Company shall deliver
to the Trustee an Officer's Certificate substantially in the form attached
hereto as Exhibit B.
(c) Every certificate or opinion (other than the certificates
required by Section 4.05(a) hereof) with respect to compliance with a
condition or covenant provided for in this Indenture shall comply with the
provisions of TIA Section 314(e) and shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(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 each such
individual, he or she has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.06. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an Officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representation with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
9
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an Officer or Officers of the Company or the
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or the Guarantor, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 1.07. 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 an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to TIA Section 315) 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 in any reasonable manner that the
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by a register kept
by the Registrar.
(d) 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 such 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. Notwithstanding TIA Section
316(c), any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior to
the first solicitation of Holders generally in connection therewith and no later
than the date such solicitation is completed.
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
9
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Notes then outstanding have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for this purpose the Notes then outstanding shall be
computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act 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 (6) months after
the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Note shall bind every future
Holder of the same Note or the Holder of every Note issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Note.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
(a) Form. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, the terms
of which are incorporated in and made a part of this Indenture. The Notes may
have notations, legends or endorsements approved as to form by the Company and
required by law, stock exchange rule, agreements to which the Company is
subject, or usage. Each Note shall be dated the date of its authentication. The
Notes shall be issuable in registered form, without coupons, and only in
denominations of $1.00 and integral multiples thereof.
(b) Global Notes. Notes to be issued in connection with the
Issuance shall be issued initially in the form of one or more Global Notes,
which shall be deposited on behalf of the Holders of the Notes represented
thereby with the Trustee, as custodian of the Depository, and registered in the
name of the Depository or a nominee of the Depository, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depository
or its nominee as hereinafter provided.
Each Global Note shall represent such of the outstanding
Notes as shall be specified therein, and each shall provide that it shall
represent the aggregate amount of outstanding Notes from time to time endorsed
thereon and that the aggregate amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges, redemptions and transfers of interests. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the
10
Note Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
Except as set forth in Section 2.06 hereof, any Global Note
may be transferred, in whole and not in part, only to another nominee of the
Depository or to a successor of the Depository or its nominee.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply
only to Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(c), authenticate and deliver the Global
Notes that (i) shall be registered in the name of the Depository or the
nominee of the Depository and (ii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instructions or held by the Trustee
as custodian for the Depository.
Participants who hold Notes through the Depository shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository or by the Note Custodian as custodian for the
Depository or under such Global Note, and the Depository may be treated by the
Company, the Trustee and any Agent of the Company or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any Agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its participants, the
operation of customary practices of such Depository governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(d) Definitive Notes. Notes issued in certificated form shall
be substantially in the form of Exhibit A attached hereto (but without including
the text referred to in footnotes 1 and 2 thereto).
Section 2.02. Execution and Authentication.
One Officer of the Company shall sign the Notes for the
Company by manual or facsimile signature. The Company's seal shall be
reproduced on the Notes and may be in facsimile form.
If an Officer of the Company whose signature is on a Note no
longer holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture. The form
of Trustee's certificate of authentication to be borne by the Notes shall be
substantially as set forth in Exhibit A hereto.
11
The Trustee shall, upon a written order of the Company
signed by an Officer of the Company, authenticate Notes for original issue up
to an aggregate principal amount stated in the Notes. The aggregate principal
amount of Notes outstanding at any time shall not exceed such amount except as
provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the
Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain (i) an office or agency where
Notes may be presented for registration of transfer or for exchange (including
any co-registrar, the "Registrar") and (ii) an office or agency where Notes
may be presented for payment ("Paying Agent") or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at
their respective addresses set forth in the register of Holders. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-Registrars and one or more additional
Paying Agents. The term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent, Registrar or co-Registrar without
prior notice to any Holder. The Company shall notify the Trustee in writing
and the Trustee shall notify the Holders of the name and address of any Agent
not a party to this Indenture. The Company 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, which shall be subject to any
obligations imposed by the provisions of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such Agent. 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, or fails to give
the foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with
the Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for
the payment of principal of and interest on the Notes, and shall notify the
Trustee of any Default by the Company in
12
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 and to account
for any funds disbursed. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company) shall have no further liability for the
money delivered to the Trustee. If the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent.
Section 2.05. Lists of Holders of the Notes.
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 Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven (7) Business Days before each interest payment date 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 Holders, including the aggregate principal amount of the Notes held by each
thereof, and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture, the procedures of the
Depository therefor and applicable securities laws. Beneficial interests in a
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in the same Global Note.
(b) Transfer and Exchange of Definitive Notes. When Notes in
definitive form are presented to the Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met; provided, however, that any Note
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar and the Trustee duly executed by the Holder
thereof or by his attorney duly authorized in writing. To permit registrations
of transfer and exchanges, the Company shall issue and the Trustee shall
authenticate Notes at the Registrar's request, subject to such rules as the
Trustee may reasonably require.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository
13
or any such nominee to a successor Depository or a nominee of such successor
Depository.
(d) Authentication of Definitive Notes in Absence of
Depository. If at any time:
(i) the Depository for the Notes notifies the Company that
the Depository is unwilling or unable to continue as
Depository for the Global Notes and a successor Depository for
the Global Notes is not appointed by the Company within 90
days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of
definitive Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, as directed by the Company, appropriate definitive Notes in an
aggregate principal amount equal to the principal amount of the Global Notes
in exchange for such Global Notes.
(e) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in Global Notes have been exchanged for
definitive Notes, redeemed, repurchased or cancelled, all Global Notes shall be
returned to or retained and cancelled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for definitive Notes, redeemed, repurchased or
cancelled, the principal amount of Notes represented by such Global Note shall
be reduced accordingly and an endorsement shall be made on such Global Note, by
the Trustee or the Notes Custodian, at the direction of the Trustee, to reflect
such reduction.
(f) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
subject to this Section 2.06, the Company shall execute and,
upon the written order of the Company signed by an Officer of
the Company, the Trustee shall authenticate definitive Notes
and Global Notes at the Registrar's request.
(ii) No service charge shall be made to any Holder for any
registration of transfer or exchange (except as otherwise
expressly permitted herein), but the Company may require
payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.10, 3.07 or
9.05 hereof, which shall be paid by the Company).
14
(iii) Neither the Company nor the Registrar shall be
required to register the transfer of or exchange any Note
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv) All definitive Notes and Global Notes issued upon any
registration of transfer or exchange of definitive Notes or
Global Notes shall be the valid Obligations of the Company,
evidencing the same debt, and entitled to the same benefits
under this Indenture, as the definitive Notes or Global
Notes surrendered upon such registration of transfer or
exchange.
(v) The Company and the Registrar shall not be required:
(A) to issue, to register the transfer of or to
exchange Notes during a period beginning at the
opening of business 15 days before the day of any
selection of Notes for redemption under Sections
3.01 and 3.02 hereof and ending at the close of
business on the day of selection;
(B) to register the transfer of or to exchange a
Note between a record date and the next succeeding
interest payment date; or
(C) to register the transfer of a Note other
than in amounts of $1.00 or integral multiples
thereof.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose
of receiving payment of principal of and interest on such
Notes, and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate definitive Notes and
Global Notes in accordance with the provisions of Section 2.02
hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note and the ownership thereof, the Company
shall issue and the Trustee, upon the written order of the Company signed by
an Officer of the Company, shall authenticate a replacement Note if the
Trustee's requirements for replacements of Notes are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that
is sufficient in the reasonable judgment of the Trustee and the Company to
15
protect the Company, the Trustee, each Agent and each authenticating agent
from any loss which any of them may suffer if a Note is replaced. The Company
and the Trustee may charge the Holder for their expenses in replacing a Note.
Every replacement Note is an additional Obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and ratably with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. If a Note is replaced
pursuant to Section 2.07 hereof, it ceases to be outstanding, subject to the
provisions of applicable law to the contrary. If the principal amount of any
Note is considered paid under Section 4.01 hereof, it ceases to be
outstanding, and interest on it ceases to accrue. Subject to Section 2.09
hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, a Subsidiary of the Company or any Affiliate of the
Company or any immediate family member of any such Affiliate shall be
considered as though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Notes which a Responsible Officer of the Trustee knows
to be so owned shall be so considered. Notwithstanding the foregoing, Notes
that are to be acquired by the Company or an Affiliate of the Company pursuant
to an exchange offer, tender offer or other agreement shall not be deemed to
be owned by such entity until legal title to such Notes passes to such entity.
Section 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company
may prepare, and upon the written order of the Company signed by an Officer of
the Company, the Trustee shall authenticate, temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company and the Trustee consider appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare, and the Trustee, upon
receipt of the written order of the Company signed by an Officer of the
Company, shall authenticate, definitive Notes in exchange for temporary Notes.
Until such exchange, temporary Notes shall be entitled to the same rights,
benefits and privileges as definitive Notes.
16
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation. Subject to Section 2.07
hereof, the Company may not issue new Notes to replace Notes that it has
redeemed or paid or that have been delivered to the Trustee for cancellation.
All cancelled Notes held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company, unless by a written order,
signed by an Officer of the Company, the Company shall direct that cancelled
Notes be returned to it.
Section 2.12. Record Date.
The record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided
for in TIA Section 316(c).
Section 2.13. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number
and, if it does so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Notes and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company will promptly notify the Trustee of any change in the CUSIP
number.
Section 2.14. Computation of Interest.
Interest on the Notes will be computed on the basis of a
360-day year comprised of twelve 30-day months.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 3.08 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45 but
not more than 60 days prior to the redemption date fixed by it (unless a
shorter notice period shall be satisfactory to the Trustee for its
convenience), notify the Trustee pursuant to an Officer's Certificate of (i)
such redemption date, (ii) the principal amount of Notes to be redeemed and
(iii) the clause of this Indenture pursuant to which the redemption shall
occur.
17
If the Company elects to make an offer to purchase Notes
pursuant to Section 3.10 hereof, it shall furnish to the Trustee, at least 45
days before the scheduled purchase date, an Officer's Certificate setting
forth (i) the terms of the offer, (ii) the principal amount of Notes to be
purchased, (iii) the purchase price, (iv) the purchase date and (v) further
setting forth a statement to the effect that the Company has received an
Extraordinary Dividend on the Pledged Collateral, including a brief
description of such Extraordinary Dividend.
Section 3.02. Selection by Trustee of Notes to be Redeemed.
If less than all of the Notes are to be redeemed at any
time, selection of Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee
deems fair and appropriate.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to
the portion of the principal amount of such Note which has been or is to be
redeemed.
Section 3.03. Notice of Redemption.
Notice of redemption shall be mailed by first class mail,
postage prepaid, at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address or at
the Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. If any Note is to be redeemed in
part only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed.
All notices of redemption shall state:
(a) the redemption date;
(b) the redemption price;
(c) if less than all Notes then outstanding are to be
redeemed, the identification (and, in the case of a Note to be redeemed in part,
the principal amount) of the particular Notes to be redeemed;
(d) that on the redemption date the redemption price will
become due and payable upon each such Note or portion thereof, and that (unless
the Company shall
18
default in payment of the redemption price) interest thereon shall cease to
accrue on or after said date;
(e) the place or places where such Notes are to be surrendered
for payment of the redemption price;
(f) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(g) the CUSIP number, if any, relating to such Notes; and
(h) in the case of a Note to be redeemed in part, the
principal amount of such Note to be redeemed and that after the redemption date
upon surrender of such Note, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at its request, by the
Trustee in the name and at the expense of the Company.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is given in accordance herewith,
Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
On or before 12:00 p.m. (New York City time) on any
redemption date or the date on which Notes are to be accepted for purchase
pursuant to Section 3.10 hereof, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 4.03 hereof) an amount of
money in same day funds (or New York Clearing House funds if such deposit is
made prior to the applicable redemption date) sufficient to pay the redemption
price of, and accrued interest on, all the Notes or portions thereof which are
to be redeemed on that date.
If Notes called for redemption or tendered in an
Extraordinary Dividend Offer are paid or if the Company has deposited with the
Trustee or Paying Agent money sufficient to pay the redemption or purchase
price of, and unpaid and accrued interest on, all Notes to be redeemed or
purchased, on and after the redemption or purchase date interest shall cease
to accrue on the Notes or the portions of Notes called for redemption or
tendered and not withdrawn in an Extraordinary Dividend Offer (regardless of
whether certificates for such securities are actually surrendered). If a Note
is redeemed or purchased on or after an interest record date but on or prior
to the related interest payment date, then any accrued and unpaid interest
shall be paid to the Person in whose name such
19
Note was registered at the close of business on such record date. If any Note
called for redemption or tendered in an Extraordinary Dividend Offer shall not
be so paid upon surrender because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal from the
redemption or purchase date until such principal is paid.
Section 3.06. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Notes so to be redeemed shall, on the redemption date, become due and payable
at the redemption price therein specified and from and after such date (unless
the Company shall default in the payment of the redemption price and accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with said notice, such Note shall be paid by
the Company at the redemption price together with accrued interest to the
redemption date.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof shall, until paid,
bear interest from the redemption date at the rate borne by such Note.
Section 3.07. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 4.02 hereof (with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Registrar or the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing),
and a new Note in principal amount equal to the unpurchased or unredeemed
portion will be issued in the name of the Holder thereof upon cancellation of
the original Note. On and after the purchase or redemption date, unless the
Company defaults in payment of the purchase or redemption price, interest
shall cease to accrue on Notes or portions thereof purchased or called for
redemption.
Section 3.08. Optional Redemption.
(a) The Notes will be subject to redemption at any time at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' written notice, at a redemption price equal to 100% of principal amount
of the Notes to be redeemed, together with accrued and unpaid interest thereon
to the applicable redemption date.
(b) Any redemption pursuant to this Section 3.08 shall be made
pursuant to the provisions of Sections 3.01 through 3.07 hereof.
20
Section 3.09. Mandatory Redemption.
The Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
Section 3.10. Option to Purchase Upon Extraordinary Dividend.
(a) In the event the Company receives an Extraordinary
Dividend on account or in respect of the Pledged Collateral, the Company may use
all or part of the proceeds of such Extraordinary Dividend (the "Extraordinary
Dividend Proceeds") to make an offer to all Holders of Notes (the "Extraordinary
Dividend Offer") to purchase Notes at an offer price in cash in an amount equal
to 100% of the principal amount thereof plus accrued and unpaid interest thereon
to the date of purchase, in accordance with the procedures set forth herein. If
the aggregate principal amount of Notes surrendered by Holders in an
Extraordinary Dividend Offer exceeds the amount of Extraordinary Dividends
Proceeds being used in such Extraordinary Dividend Offer, the Trustee shall
select the Notes to be purchased by the Company in such Extraordinary Dividend
Offer on a pro rata basis.
(b) In the event that the Company elects to commence an
Extraordinary Dividend Offer, it shall follow the procedures specified below.
An Extraordinary Dividend Offer shall remain open for a
period of at least 20 Business Days following its commencement (the "Offer
Period"). No later than five (5) Business Days after the termination of the
Offer Period (the "Purchase Date"), the Company shall purchase the principal
amount of Notes that the Company offered to purchase pursuant to an
Extraordinary Dividend Offer (the "Offer Amount") or, if less than the Offer
Amount has been tendered, all Notes tendered in response to such Extraordinary
Dividend Offer. Payment for any Notes so purchased shall be made in the same
manner as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Extraordinary Dividend
Offer.
Upon the commencement of an Extraordinary Dividend Offer,
the Company shall send, by first class mail, a notice to the Trustee and each
of the Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Extraordinary Dividend Offer. The Extraordinary Dividend Offer
shall be made to all Holders. The notice, which shall govern the terms of an
Extraordinary Offer, shall state:
21
(i) that the Extraordinary Dividend Offer is being made
pursuant to this Section 3.10 and the length of time the
Extraordinary Dividend Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase
Date;
(iii) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(iv) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Extraordinary
Dividend Offer shall cease to accrue interest after the Purchase
Date;
(v) that Holders electing to have a Note purchased pursuant
to any Extraordinary Dividend Offer shall be required to surrender
the Note, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Note completed, or transfer by book-entry
transfer, to the Company, a depositary, if appointed by the Company,
or a Paying Agent at the address specified in the notice at least
three (3) days before the Purchase Date;
(vi) that Holders shall be entitled to withdraw their
election if the Company, the depositary or the Paying Agent, as the
case may be, receives, not later that the expiration of the Offer
Period, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder delivered for
purchase and a statement that such Holder is withdrawing his election
to have such Note purchased;
(vii) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Trustee shall
select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1.00 or integral multiples thereof, shall
be purchased); and
(viii) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Extraordinary Dividend Offer, or if less than the Offer Amount has
tendered, all Notes tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.10. The
Company, the Depository or the Paying Agent, as the case may be, shall
promptly (but in any case not later than five (5) Business Days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by
22
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof.
Other than as specifically provided in this Section 3.10,
any purchase pursuant to this Section 3.10, shall be made pursuant to the
provisions of Sections 3.01 through 3.07 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Principal and Interest.
The Company shall pay or cause to be paid the principal of
and interest on the Notes on the dates and in the manner provided in the
Notes. Principal and interest shall be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
12:00 p.m. (New York City time) on the due date money deposited by the Company
in immediately available funds and designated for and sufficient to pay all
principal and interest then due.
Section 4.02. Maintenance of Office or Agency.
The Company will maintain an office or agency where Notes
may be presented or surrendered for payment, where Notes may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes, and may from time to time rescind such designation;
provided, however, that no such designation or recession shall in any manner
relieve the Company of its obligation to maintain an office or agency for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or recession and any change in the location of any such
office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03 hereof.
23
Section 4.03. Money for Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of or interest on
any of the Notes, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents
for the Notes, it will, on or before each due date of the principal of or
interest on any Notes, deposit with a Paying Agent a sum in same day funds (or
New York Clearing House funds if such deposit is made prior to the date on
which such deposit is required to be made) sufficient to pay the principal or
interest so becoming due (or at the option of the Company, payment of interest
may be mailed by check to the Holders of the Notes at their respective
addresses set forth in the register of Holders of Notes; provided that all
payments with respect to Notes represented by one or more permanent Global
Notes will be paid by wire transfer of immediately available funds to the
account of the Depository or any successor thereto) such sum to be held in
trust for the benefit of the Persons entitled to such principal or interest
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of or interest on Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of principal or
interest;
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the duties, rights and
obligations of such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by
24
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on any Note and remaining unclaimed for two (2) years after such
principal or interest has become due and payable shall be paid to the Company
at the request of the Company or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company (i) cause to be published once, in The New York Times and The Wall
Street Journal (national edition), 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 notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Company, and (ii) cause notice
to be promptly sent to each Holder 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 notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 4.04. Reports.
(a) As long as any Notes are outstanding, the Company shall
furnish to the Trustee copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company is not required to file information
documents or reports pursuant to either of such sections, then to furnish to the
Trustee and file with the Commission, in accordance with rules and regulations
prescribed by the Commission, any such supplementary and periodic information,
documents, and reports which may be required pursuant to Section 13 of the
Exchange Act, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations.
(b) In addition to complying with Section 4.04(a), the Company
shall at all times comply with TIA Section 314(a), as applicable.
Section 4.05. Statement as to Compliance; Notice of Default.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year ending after the date of this Indenture, an
Officer's Certificate stating whether, to such Officer's knowledge, the Company
is in compliance with all covenants and conditions to be complied with by it
under this Indenture, and further stating, as to the Officer signing such
certificate, that to the best of his or her knowledge each entity is not in
default in the performance or observance of any terms, provisions
25
and conditions of this Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto. For purposes of this Section 4.05, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officer's Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.06. Payment of Taxes and Other Claims.
The Company shall pay prior to delinquency, all material
taxes, assessments, and governmental levies, except such as are contested in
good faith and by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.
Section 4.07. Stay, Extension, Usury Laws.
The Company and the Guarantor covenant (to the extent that
they may lawfully do so) that they shall not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law whatever enacted, now or at any time hereafter in
force, that may affect that covenants or the performance of this Indenture;
and the Company and the Guarantor (to the extent that they may lawfully do so)
hereby waive all benefit or advantage of any such law, and covenants that they
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.08. Corporate Existence; Corporate Actions.
(a) Subject to Articles 5 and 10 hereof, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company.
(b) The Company will engage only in acts or activities,
directly or indirectly, arising from, provided or necessitated by, resulting
from, in connection with or otherwise incidental or related to the following:
26
(i) subject to Section 3.10 hereof and paragraph (f)
below, accepting, owning and holding the entire beneficial
interest in the Pledged Collateral or any other contributions
to the capital of the Company as long as such contributions
have no associated liabilities;
(ii) entering into this Indenture and the Security
Agreement (or any amendment hereto or thereto);
(iii) complying with, and performing any and all of the
Company's obligations under, contemplated or necessitated by
or in connection with, this Indenture, the Notes, the
Issuance, the Security Agreement, the Merger Agreement, the
Merger, the Subrogation Agreement or the Trustee Note;
(iv) subject to Section 3.10 hereof and paragraph (f)
below, investing the proceeds derived from the ownership of
the Pledged Collateral or any other assets contributed to the
Company, but only in bank certificates of deposit, money
market instruments or securities issued by the United States
government or its agencies or instrumentalities (as long as
such certificates of deposit, money market instruments or
securities mature prior to ________, 2002);
(v) executing, delivering and performing any agreement
evidencing, necessitated by or in connection with any and
all of the foregoing or any and all of the activities and
powers referred to in clause (vi) below; and
(vi) engaging in any lawful act or activity and to
exercise powers permitted to a corporation organized under the
General Corporation Law of the State of Delaware that, in each
case, are incidental to the foregoing or necessary to
accomplish the foregoing.
(c) Notwithstanding any provision of the Company's Certificate
of Incorporation and any provision of law that otherwise so empowers the
Company, the Company shall not (i) engage in any business or activity other than
as described in Section 4.08 or its Certificate of Incorporation and matters
necessarily incident thereto; (ii) increase or reclassify the Capital Stock of
the Company or issue any additional shares of Capital Stock of the Company; or
(iii) delete, amend, supplement or otherwise modify any provision of its
Certificate of Incorporation, or delete, amend, supplement or otherwise modify
any provision of its By-laws to frustrate the provisions of its Certificate of
Incorporation.
(d) The Company shall at all times:
(i) not become involved in the day-to-day management of
any other Person;
27
(ii) maintain corporate records, books of account and
payroll (if any) separate from any other Person;
(iii) maintain financial statements, books and records
separate from any other Person and insure that any
consolidated financial statements that include the Company
have notes clearly stating that the Company is a separate
corporate entity;
(iv) maintain its assets separately from the assets of any
other Person (including through the maintenance of a separate
bank account);
(v) conduct all business correspondence of the Company and
other communications in the Company's own name;
(vi) not act as an agent of any other Person in any
capacity; and
(vii) separately manage the Company's liabilities from
those of any other Person.
(e) The Company shall not declare or pay any dividend or make
any other payment or distribution on account or in respect of the Company's
Capital Stock.
(f) Notwithstanding anything to the contrary in this
Indenture, the Security Agreement or the Company's Certificate of Incorporation,
the Company shall be able to use the proceeds derived from its ownership of the
Pledged Collateral, including, but not limited to, the proceeds of any Regular
Dividend or Extraordinary Dividend made on account or in respect of the Pledged
Collateral, and the proceeds of any contributions to the capital of the Company,
to pay or cause to be paid the principal of and interest on the Notes in the
manner provided herein and the Notes or to purchase, redeem or otherwise acquire
or retire the Notes; provided, however, that, in the event that the proceeds of
any Extraordinary Dividend exceed $2.3 million, the Company may not use more
than the greater of $2.3 million and 50% of such Extraordinary Dividend to pay
or cause to be paid interest on the Notes.
Section 4.09. Limitation on Incurrence of Indebtedness.
The Company shall not, create, incur, issue, assume,
guarantee or otherwise become, directly or indirectly, liable, contingently or
otherwise, with respect to (collectively, "incur") any indebtedness or
liability.
Notwithstanding the foregoing, the Company may incur the
following:
(a) indebtedness or liabilities of the Company under, arising
from or otherwise with respect to or in connection with, or otherwise incurred
by the Company in connection with the consummation of any of the transactions
contemplated by, or otherwise to comply with, the Notes, this Indenture, the
Officer's Certificate to be delivered pursuant to Section 1.05(b) hereof, the
Security Agreement and the Trustee
28
Note (as contemplated by the Subrogation Agreement), in each case, after
_______, 1999 [i.e., the date of the Indenture];
(b) indebtedness or liabilities arising after _______, 1999
[i.e., the date of the Indenture] from the fees and expenses of, or payable or
paid to, (i) the Trustee or the Collateral Agent, and (ii) the Company's outside
counsel or accountants or other outside agents or representatives, to the extent
it is necessary or reasonably advisable to engage any such person in connection
with the Company's interpreting, complying with (including, but not limited to,
complying with any applicable law, rule or regulation), or otherwise
consummating any of the transactions contemplated by, this Indenture, the
Officer's Certificate to be delivered pursuant to Section 1.05(b) hereof, the
Notes, the Security Agreement, the Subrogation Agreement or the Trustee Note;
and
(c) indebtedness or liabilities on account of incidentals or
administrative services supplied or furnished to the Company (including, but not
limited to, bank and brokerage fees) in an aggregate amount per calendar year
not to exceed $7,500.
Section 4.10. Limitations on Liens.
The Company shall not, directly or indirectly, create,
incur, assume or suffer to exist any Lien on any asset or property now owned
or hereafter acquired by the Company, except Permitted Liens.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
Without the consent of the Holders of at least 66-2/3% in
principal amount of Notes then outstanding, the Company shall not, in one or
more related transactions, consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets to, or sell, transfer or dispose of any of its Capital Stock to,
another Person. In the event the requisite approval for any transaction
described in the foregoing sentence is obtained, (a) upon consummation of any
such transaction, the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made, assumes
all the Obligations of the Company under the Notes and this Indenture pursuant
to a supplemental indenture in a form reasonably satisfactory to the Trustee,
(b) immediately after any such transaction no Default or Event of Default
shall exist, and (c) upon consummation of any such transaction, the Company
delivers an Officer's Certificate and an Opinion of Counsel to the Trustee,
stating (A) that the proposed transaction and the supplemental indenture
comply with the Indenture and (B) that the Trustee shall be entitled to
conclusively rely upon such Officer's Certificate and Opinion of Counsel.
29
Section 5.02. Successor Corporation Substituted.
Upon any permitted consolidation or merger, or any sale,
assignment, transfer, lease or conveyance or other disposition of all or
substantially all of the assets of, transfer or other disposition of any of
the Capital Stock of, the Company in accordance with Section 5.01 hereof, the
successor corporation formed by such consolidation or into or with which the
Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of this Indenture
referring to the "Company" shall refer instead to such successor) and may
exercise every right and power of the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes, except in the
case of a sale or other disposition of all or substantially all of the
Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default and Notice Thereof.
Each of the following constitutes an "Event of Default":
(a) default for 15 days in the payment when due of interest on
the Notes;
(b) default for 5 days in payment when due of the principal on
the Notes;
(c) failure by the Company or the Guarantor, as applicable, to
comply with the provisions of Section 4.09, 4.10, 5.01 or 10.03 hereof;
(d) failure by the Company for 21 days after written notice to
comply with any of its other covenants or agreements in this Indenture, the
Notes or the Security Agreement (including any failure to provide the Collateral
Agent, for the benefit of the Holders of the Notes, with a continuing
first-priority Lien on the Pledged Collateral), or the failure, after 21 days
written notice thereof, of any of the representations or warranties in the
Security Agreement to be true and correct in all material respects;
(e) failure by the Guarantor to perform any covenant set forth
in the Parent Guarantee, or the repudiation by the Guarantor of its obligations
under the Parent Guarantee or the unenforceability of the Parent Guarantee
against the Guarantor for any reason, unless, in each such case, the Guarantor
has no indebtedness for borrowed money outstanding at such time or at any time
thereafter;
30
(f) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against
it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due;
and
(g) 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;
(B) appoints a Custodian of the Company for all
or substantially all of the property of the Company;
or
(C) orders the liquidation of the Company; and
the order or decree remains unstayed and in effect
for 60 consecutive days.
Section 6.02. Acceleration.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default specified in
clause (f) or (g) of Section 6.01 hereof with respect to the Company, all
outstanding Notes will become due and payable without further action or
notice. Holders of the Notes may not enforce this Indenture or the Notes
except as provided in this Indenture.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may, or may direct the Collateral Agent to, pursue any available remedy to
collect the payment of principal and interest on the Notes or to enforce the
performance of any provision of the Notes, this Indenture or the Security
Agreement.
31
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee, the Collateral Agent or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of
the Notes then outstanding, by notice to the Trustee and the Collateral Agent,
may on behalf of the Holders of all of the Notes waive any existing Default or
Event of Default and its consequences under this Indenture, except a
continuing Default or Event of Default in the payment of interest on, or
principal of, the Notes, and except in connection with a purchase of, or a
tender offer or exchange offer for, the Notes. Notwithstanding the foregoing,
the consent of Holders of at least 66-2/3% in principal amount of the Notes
then outstanding (excluding, as part of such 66-2/3%, consents obtained in
connection with a purchase of, or a tender offer or exchange offer for, the
Notes) shall be required for any waiver of any existing Default or Event of
Default with respect to the Company's non-compliance with Section 4.08, 4.09,
4.10 or 5.01 hereof. The Trustee may withhold from Holders of the Notes and
from the Collateral Agent notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in such Holders'
interest.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or the
Collateral Agent or exercising any trust or power conferred on it, including
the exercise of any remedy under the Security Agreement. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
or that would be likely to subject the Trustee to personal liability, as
determined by the Trustee's independent counsel in a written opinion. The
Trustee may take any other action which it deems proper which is not
inconsistent with any such direction.
Section 6.06. Limitation on Suits.
No Holder of a Note will have any right to institute any
proceeding with respect to this Indenture or for any remedy hereunder, unless
(i) such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes, (ii) the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding shall
have made written request to the Trustee to institute such proceeding, and
(iii) the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Notes then outstanding a direction
inconsistent with
32
such request and shall have failed to institute (or commit to institute as soon
as possible) such proceeding within 15 days.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of and interest
on any Note, on or after the respective due dates expressed in any Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of principal of and interest remaining unpaid on the Notes and,
to the extent lawful, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company, the Guarantor or any other obligor upon the Notes,
and their respective creditors or property and shall be entitled and empowered
to collect, receive and distribute any money or other property payable or
deliverable on any such claims, and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, as administrative expenses associated with any such proceeding, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or otherwise. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights
33
of any Holder, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article
6, it shall pay out the money, subject to Article 9 hereof and Section 16 of
the Security Agreement, in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for interest and then principal, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for interest
and principal, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default shall occur (which shall not be
cured), the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its exercise, 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:
34
(1) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee
need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, provided,
that the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities 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
hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (e) and (f) of this Section 7.01 and Section 7.02
hereof.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request or direction of any of the Holders unless the Holders
shall have offered to the Trustee security and indemnity reasonably satisfactory
to it against any loss, liability or expense.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
35
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereof in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and 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 that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(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 or
direction of any of the Holders of Notes unless such Holders of Notes shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against any loss, liability or expense.
Section 7.03. Individual Rights of Trustee.
The Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Company
with the same rights it would have if it were not Trustee. However, in the
event that the Trustee acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the Commission for permission to
continue as trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
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, the Notes or
the Security Documents, it shall not be accountable for the Company's use of
the proceeds from the Notes or any money paid to the Company or upon the
direction of the Company under any provision of this
36
Indenture or of the Security Agreement, it shall not be responsible for the use
or application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document furnished or issued in connection
with the sale of the Notes other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to the
Collateral Agent and to the Holders of Notes a notice of the Default or Event
of Default within 30 days after it occurs. If a Default or Event of Default
has occurred and is cured and such cure is actually known to the Trustee, the
Trustee shall mail to the Collateral Agent and the Holders of Notes a notice
of such cure within seven (7) days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each [May 15] beginning with the [May
15] following the Closing Date, and for so long as Notes remain outstanding,
the Trustee shall mail to the Holders of the Notes a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Notes
are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee, from time to time as
may be agreed upon between them, reasonable compensation for its acceptance of
this Indenture and services hereof. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
37
The Company shall indemnify and hold harmless the Trustee
against any and all losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, including the costs and expenses of enforcing this Indenture
or the Security Documents against the Company (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company or any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder or under the Security
Documents, except to the extent any such loss, liability or expense may be
attributable to its negligence, willful misconduct or bad faith. The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee shall reasonably cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after
the occurrence of an Event of Default specified in Section 6.01(f) or (g)
hereof, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
38
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
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 that meets the eligibility requirements in Section 7.10
below. At any time, within one (1) year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
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 at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a
Note who has been a Holder of a Note for at least six (6) months (or such
shorter period during which the Notes have been outstanding), fails to comply
with Section 7.10 hereof, such Holder of a Note may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee, to the Company and to the Collateral
Agent. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Holders of the Notes and to the Collateral
Agent. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the retiring
Trustee have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for
the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business (including
the trust created by this Indenture) to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
39
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereof and a
Collateral Agent under the Security Agreement that is a corporation organized
and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by federal or state
authorities and that has, or is a wholly owned subsidiary of a bank holding
company that has, a combined capital and surplus of at least $500 million 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), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against the
Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed 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
therein.
Section 7.12. Rights of Holders with Respect to Time, Method
and Place.
Subject to the limitations of Article 6 and 7 of this
Indenture, a majority in principal amount of the then outstanding Notes issued
hereunder shall have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee.
ARTICLE 8
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01. Without Consent of Holders of Notes.
Notwithstanding Section 8.02 hereof, without the consent of
any Holder of Notes, the Company, the Guarantor (with respect to the Parent
Guarantee or this Indenture to which it is a party) and the Trustee may amend
or supplement this Indenture, the Notes, the Parent Guarantee or the Security
Documents:
(a) to cure any manifest error, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to comply with Article 10 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any such Holder;
40
(e) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(f) to enter into additional or supplemental Security
Documents.
Upon the written request of the Company accompanied by a
Board Resolution authorizing the execution of any such amended or supplemental
Indenture or Security Documents, and upon receipt by the Trustee of the
documents described in Section 8.06 hereof the Trustee shall join with the
Company and the Guarantor, if necessary, in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
or the Security Documents and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that affects
its own rights, duties or immunities under this Indenture or otherwise.
Section 8.02. With Consent of Holders of Notes.
Except as provided in the proviso included in this paragraph
and as otherwise provided below in this Section 8.02, this Indenture, the
Notes, the Parent Guarantee issued hereunder and the Security Documents may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding (excluding, as part of such
majority, consents obtained in connection with a purchase of, or a tender
offer or exchange offer for, the Notes), and, subject to Sections 6.02, 6.04
and 6.07 hereof, any existing default or compliance with any provision of this
Indenture, the Notes, the Parent Guarantee or the Security Documents may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Notes (excluding consents obtained in connection with a
tender offer or exchange offer for the Notes); provided, however, that the
consent of the Holders of at least 66-2/3% in principal amount of the Notes
then outstanding (excluding, as part of such 66-2/3%, consents obtained in
connection with a purchase of, or a tender offer or exchange offer for, the
Notes) shall be required for any amendment or supplement of, or waiver of any
existing Default or compliance with any provisions of, Section 4.08, 4.09,
4.10 or 5.01 hereof.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture or Security Documents, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 8.06 hereof to the extent requested by the Trustee, the Trustee shall
join with the Company and the Guarantor in the execution of such amended or
supplemental Indenture or Security Document unless such amended or
supplemental Indenture or Security Document affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental Indenture or Security Documents.
41
The consent of the Holders is not necessary under this
Section 8.02 to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
Neither the Company nor any of its Affiliates shall,
directly or indirectly, pay or cause to be paid any consideration to any
Holder of Notes for or as an inducement to, or in connection with the
solicitation of, any consent, waiver or amendment of any terms of this
Indenture, the Security Agreement or the Notes, unless such consideration is
required to be paid to all Holders bound by such consent, waiver or amendment
whether or not such Holders so consent, waive or agree to amend or tender.
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07
hereof, the Holders of a majority in aggregate principal amount of the Notes
then outstanding may waive compliance in a particular instance by the Company
with any provision of this Indenture, the Notes or the Parent Guarantee, or
the Security Documents. However, without the consent of each Holder affected,
an amendment or waiver may not (with respect to any Note or the Parent
Guarantee held by a non-consenting Holder):
(i) reduce the principal amount of the Notes whose
Holders must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity
of any Note or alter the provisions with respect to the
redemption of the Notes;
(iii) reduce the rate of or change the time for payment
of interest on any Note;
(iv) waive a Default or Event of Default in the payment
of principal of or interest on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of such Notes and a
waiver of the payment default that resulted from such
acceleration);
(v) make any Note payable in money other than that stated
in such Notes;
(vi) make any change in Section 6.04 or Section 6.07
hereof;
(vii) except as provided under Article 10 or in
accordance with the terms of the Parent Guarantee, release the
Guarantor from its
42
obligations under the Parent Guarantee, or make any change in
the Parent Guarantee that would adversely affect the Holders
of the Notes;
(viii) make any change in the foregoing amendment and
waiver provisions of this Article 8; or
(ix) release any portion of the Pledged Collateral from
the Lien of this Indenture or the Security Documents.
Section 8.03. Compliance With TIA.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective,
a consent to it by a Holder of a Note is a continuing consent by the Holder of
a Note and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
Section 8.05. Notation on or Exchange of Notes.
The Trustee may, but shall not be required to, place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 8.06. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental Indenture
or Security Agreement authorized pursuant to this Article 8 if the amendment
or supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Company may not sign an amendment or
supplemental Indenture or Security Document until the Board of Directors
approves it. In signing or refusing to sign any amended or supplemental
Indenture or Security Document the Trustee shall be entitled to receive and
(subject to Section 7.01 hereof) shall be fully protected in relying upon an
Officers's Certificate and an Opinion of Counsel stating that the execution of
such amended or
43
supplemental Indenture or Security Document is authorized or permitted by this
Indenture and that it is not inconsistent herewith.
ARTICLE 9
COLLATERAL AND SECURITY
Section 9.01. Security Agreement.
The due and punctual payment of the principal of and
interest on the Notes when and as the same shall be due and payable, whether
on an interest payment date, at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes
and performance of all other obligations of the Company to the Holders of
Notes or the Trustee under this Indenture and the Notes, according to the
terms hereunder or thereunder, shall be secured to the extent provided in the
Security Agreement. Each Holder of Notes, by its acceptance thereof, consents
and agrees to the terms of the Security Agreement (including, without
limitation, the provisions providing for foreclosure and release of Pledged
Collateral (as defined in the Security Agreement)) as the same may be in
effect or may be amended from time to time in accordance with its terms and
authorizes and directs the Collateral Agent to enter into the Security
Agreement and to perform its obligations and exercise its rights thereunder in
accordance therewith. The Company shall deliver or cause to be delivered to
the Trustee copies of all documents delivered to the Collateral Agent pursuant
to the Security Agreement, and shall do or cause to be done all such acts and
things as may be necessary or proper, or as may be required by the provisions
of the Security Agreement, to assure and confirm to the Trustee and the
Collateral Agent the security interest in the Pledged Collateral contemplated
hereby, by the Security Agreement or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit
of this Indenture and of the Notes secured hereby, according to the intent and
purposes herein expressed. The Company shall take upon request of the Trustee
or the Collateral Agent, any and all actions reasonably required to cause the
Security Agreement to create and maintain, as security for the Obligations of
the Company hereunder, a valid and enforceable perfected first priority Lien
in and on all the Pledged Collateral, in favor of the Collateral Agent for the
benefit of the Holders of Notes, superior to and prior to the rights of all
third Persons and subject to no Liens other than Permitted Liens.
Section 9.02. Recording and Opinions.
(a) The Company shall furnish to the Trustee and the
Collateral Agent simultaneously with the execution and delivery of this
Indenture an Opinion of Counsel either (i) stating that in the opinion of such
counsel all action has been taken with respect to the recording, registering and
filing of this Indenture, financing statements or other instruments necessary to
make effective the Lien intended to be created by the Security Agreement, and
reciting with respect to the security interests in the Pledged Collateral, the
details of such action, or (ii) stating that, in the opinion of such counsel, no
such action is necessary to make such Lien effective.
44
(b) The Company shall furnish to the Collateral Agent and the
Trustee on ____, in each year beginning with , 2000, an Opinion of Counsel,
dated as of such date, either (i)(A) stating that, in the opinion of such
counsel, action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and re-filing of all supplemental
indentures, financing statements, continuation statements or other instruments
of further assurance as is necessary to maintain the Lien of the Security
Agreement and reciting with respect to the security interests in the Pledged
Collateral the details of such action or referring to prior Opinions of Counsel
in which such details are given, or (B) stating that, based on relevant laws as
in effect on the date of such Opinion of Counsel, all financing statements and
continuation statements have been executed and filed that are necessary as of
such date and during the succeeding 12 months fully to preserve and protect, to
the extent such protection and preservation are possible by filing, the rights
of the Holders of Notes and the Collateral Agent and the Trustee hereunder and
under the Security Agreement with respect to the security interests in the
Pledged Collateral, or (ii) stating that, in the opinion of such counsel, no
such action is necessary to maintain such Lien and assignment.
(c) The Company shall otherwise comply with the provisions of
TIA Section 314(b).
Section 9.03. Release of Collateral.
(a) Subject to subsection (b) of this Section 9.03, Pledged
Collateral may be released from the Lien and security interest created by the
Security Agreement at any time or from time to time in accordance with the
provisions of the Security Agreement or as provided hereby.
(b) The release of any Pledged Collateral from the terms of
this Indenture and the Security Agreement shall not be deemed to impair the
security under this Indenture in contravention of the provisions hereof if and
to the extent the Pledged Collateral is released pursuant to the terms of the
Security Agreement. To the extent applicable, the Company shall cause TIA
Section 313(b), relating to reports, and TIA Section 314(d), relating to the
release of property or securities from the Lien and security interest of the
Security Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Security
Agreement, to be complied with. The Trustee shall comply (to the extent
required) with TIA Sections 313(b)(1) and 313(d). Any certificate or opinion
required by TIA Section 314(d) may be made by an Officer of the Company except
in cases where TIA Section 314(d) requires that such certificate or opinion be
made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or approved by the Trustee and the Collateral
Agent in the exercise of reasonable care.
Section 9.04. Certificates of the Company.
(a) The Company shall furnish to the Trustee and the
Collateral Agent, prior to each proposed release of Pledged Collateral pursuant
to the Security Agreement,
45
(i) all documents required by TIA Section 314(d) and (ii) an Opinion of Counsel,
which shall be rendered by outside counsel to the Company, to the effect that
such accompanying documents constitute all documents required by TIA Section
314(d). The Trustee may, to the extent permitted by Sections 7.01 and 7.02
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
Section 9.05. Certificates of the Trustee.
In the event that the Company wishes to release Pledged
Collateral in accordance with the Security Agreement and has delivered the
certificates and documents required by the Security Agreement and Section 9.04
hereof, the Trustee, based on the Opinion of Counsel delivered pursuant to
Section 9.04(b), shall deliver a certificate to the Collateral Agent setting
forth such determination.
Section 9.06. Authorization of Actions to be Taken by the
Trustee under the Security Agreement.
Subject to the provisions of Section 7.01 and 7.02 hereof,
the Trustee may, in its sole discretion and without the consent of the Holders
of Notes, direct, on behalf of the Holders of Notes, the Collateral Agent to
take all actions it deems necessary or appropriate in order to (a) enforce any
of the terms of the Security Agreement and (b) collect and receive any and all
amounts payable in respect of the Obligations of the Company hereunder. The
Trustee shall have the power to, or direct the Collateral Agent to, institute
and maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Pledged Collateral by any acts that may be unlawful or
in violation of the Security Agreement or this Indenture, and such suits and
proceedings as the Trustee or the Collateral Agent may deem expedient to
preserve or protect its interests and the interests of the Holders of Notes in
the Pledged Collateral (including the power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial
to the interests of the Holders of the Notes, the Trustee or the Collateral
Agent).
Section 9.07. Authorization of Receipt of Funds by the Trustee
Under the Security Agreement.
The Trustee is authorized to receive any funds for the
benefit of the Holders of Notes distributed under the Security Agreement, and
to make further distribution of such funds to the Holders of Notes according
to the provisions of this Indenture.
46
Section 9.08. Termination of Security Interest.
Upon the payment in full of (a) all Obligations of the
Company under this Indenture and the Notes and (b) all fees and expenses due
to the Trustee under this Indenture, the Trustee shall, at the request of the
Company, deliver a certificate to the Collateral Agent stating that such
Obligations have been paid in full, and instruct the Collateral Agent to
release the Liens pursuant to this Indenture and the Security Agreement.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Parent Guarantee.
Subject to Section 10.04 hereof, the Guarantor hereby
unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes
held thereby and the Obligations of the Company hereunder and thereunder,
that: (a) the principal of and interest on the Notes will be promptly paid in
full when due, subject to any applicable grace period, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal
on the Notes, and all other payment Obligations of the Company to the Holders
or the Trustee hereunder or thereunder will be promptly paid in full and
performed, all in accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Notes or any of
such other Obligations, the same will be promptly paid in full when due in
accordance with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantor
will be obligated to pay the same immediately. An Event of Default under this
Indenture or the Notes shall constitute an event of default under the Parent
Guarantee, and shall entitle the Holders to accelerate the Obligations of the
Guarantor hereunder in the same manner and to the same extent as the
Obligations of the Company. The Guarantor hereby agrees that its Obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this Parent Guarantee
will not be discharged except by complete performance of the Obligations
contained in the Notes and this Indenture. If any Holder or the Trustee is
required by any court or otherwise to return to the Company, the Guarantor, or
any Custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the
47
Guarantor, any amount paid by the Company or the Guarantor to the Trustee or
such Holder, the Parent Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. The Guarantor agrees that it shall not
be entitled to, and hereby waives, any right of subrogation in relation to the
Holders in respect of any Obligations guaranteed hereby. The Guarantor further
agrees that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes of
the Parent Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed thereby,
and (ii) in the event of any declaration of acceleration of such Obligations as
provided in Article 6 hereof, such Obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantor for the purpose of the
Parent Guarantee.
Section 10.02. Execution and Delivery of Parent Guarantee.
To evidence the Parent Guarantee set forth in Section 10.01
hereof, the Guarantor hereby agrees that a notation of the Parent Guarantee
substantially in the form of Exhibit C hereto shall be endorsed by manual or
facsimile signature by an Officer of the Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on
behalf of the Guarantor, by manual or facsimile signature, by an officer of
the Guarantor.
The Guarantor hereby agrees that the Parent Guarantee shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of the Parent Guarantee.
If an Officer whose signature is on this Indenture or on the
Parent Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which the Parent Guarantee is endorsed, the Parent
Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Parent
Guarantee set forth in this Indenture on behalf of the Guarantor.
Section 10.03. Guarantor May Consolidate, Etc., on Certain
Terms.
(a) Except as set forth in this Section 10.03, nothing
contained in this Indenture shall prohibit a merger between the Guarantor and a
Subsidiary of the Guarantor, other than a merger between the Guarantor and the
Company (which shall only be permitted as set forth in Section 5.01).
(b) The Guarantor shall not consolidate with or merge with or
into (whether or not the Guarantor is the surviving Person), sell all or
substantially all of its assets to, or sell or dispose of more than 80% of its
Capital Stock to, another Person, whether or not affiliated with the Guarantor,
unless, other than with respect to a merger between the Guarantor and a
Subsidiary of the Guarantor (other than the Company),
48
(i) the Person formed by or surviving any such consolidation or merger (if other
than the Guarantor), or to which such sale shall have been made, assumes all the
obligations of the Guarantor pursuant to a supplemental indenture substantially
in the form of Exhibit D hereto, under the Parent Guarantee of the Guarantor and
this Indenture; (ii) immediately after giving effect to such transaction, no
Default or Event of Default exists; and (iii) except in the case of a merger of
the Guarantor with and into a Subsidiary of the Guarantor, the Guarantor or the
entity or Person formed by or surviving any such consolidation or merger, or to
which such sale shall have been made, shall have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of the Guarantor immediately preceding the transaction.
(c) In the case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and substantially in the form
of Exhibit D hereto, of the Parent Guarantee endorsed upon the Notes and the due
and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, such successor Person shall succeed
to and be substituted for the Guarantor with the same effect as if it had been
named herein as the Guarantor. Such successor Person thereupon may cause to be
signed the Parent Guarantee to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed and delivered to the
Trustee. The Parent Guarantee so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Parent Guarantee theretofore
and thereafter issued in accordance with the terms of this Indenture as though
the Parent Guarantee had been issued at the date of the execution hereof.
(d) In the event of a sale of all or substantially all of the
assets of the Guarantor in compliance with Section 10.03(b) above, then the
Guarantor shall be released and relieved of any Obligations under the Parent
Guarantee. Upon the delivery by the Guarantor or such other appropriate Person
to the Trustee of an Officer's Certificate to the effect of the foregoing, the
Trustee shall execute any document reasonably required in order to evidence the
release of the Guarantor from its Obligations under the Parent Guarantee.
Section 10.04. Limitation on Guarantor Liability.
For purposes hereof, the Guarantor's liability shall be
limited to the lesser of (a) the aggregate amount of the Obligations of the
Company under the Notes and this Indenture and (b) the amount, if any, which
would not have (i) rendered the Guarantor "insolvent" (as such term is defined
in applicable Bankruptcy Law) or (ii) left the Guarantor with unreasonably
small capital at the time the Parent Guarantee was entered into; provided,
however, that, it will be a presumption in any lawsuit or other proceeding in
which the Guarantor is a party that the amount guaranteed pursuant to the
Parent Guarantee is the amount set forth in clause (a) above unless any
creditor, or representative of creditors of the Guarantor, or debtor in
possession or trustee in bankruptcy of the Guarantor, otherwise proves in such
a lawsuit that the aggregate liability of the Guarantor is the amount set
forth in clause (b) above. In making any
49
determination as to solvency or sufficiency of capital of the Guarantor in
accordance with the previous sentence, any rights the Guarantor may have,
contractual or otherwise, shall be taken into account.
Section 10.05. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article 10 shall in each case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully and for all intents and purposes
as if such Paying Agent were named in this Article 11 in place of the Trustee.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and will cease to be of
further effect as to all Notes issued hereunder, when either:
(a) all such Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or
(b) (i) all such Notes not theretofore delivered to such
Trustee for cancellation have become due and payable by reason of the
making of a notice of redemption or otherwise or will become due and
payable within one (1) year and the Company or the Guarantor, has
irrevocably deposited or caused to be deposited with such Trustee as
trust funds in trust an amount of money sufficient to pay and discharge
the entire Indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation for principal and accrued interest to the date
of maturity or redemption;
(ii) no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit and
such deposit will not result in a breach or violation of, or constitute
a default under, any other instrument to which the Company or the
Guarantor is a party or by which the Company or the Guarantor, is
bound;
(iii) the Company or the Guarantor has paid or caused to
be paid all sums payable by it under this Indenture; and
50
(iv) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of such Notes at maturity or the redemption date, as the
case may be.
In addition, the Company must deliver an Officer's
Certificate and an Opinion of Counsel to the Trustee stating that all
conditions precedent to satisfaction and discharge have been satisfied.
Section 11.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
4.03 hereof, all money deposited with the Trustee pursuant to Section 11.01
hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with the Trustee.
If the Trustee or Paying Agent is unable to apply any money
or Government Securities in accordance with Section 11.01 hereof by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's Obligations under this Indenture and the Notes
shall be revived and reinstated as though such deposit had not occurred
pursuant to Section 11.01 hereof; provided that if the Company has made any
payment of principal of or interest on any Notes because of the reinstatement
of its Obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money or Government
Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Conflict of any Provision of Indenture with
TIA.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
Section 12.02. Notices.
Any notice or communication by the Company, the Guarantor or
the Trustee to the others is duly given if in writing and delivered in Person
or mailed by first class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day
delivery, to the others' address:
If to the Company:
[Avatex Funding, Inc.]
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
00
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (214)
If to the Guarantor:
Avatex Corporation
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to the Trustee:
Xxxxx Fargo & Company
Sixth and Marquette; M.S. 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
Facsimile: (000) 000-0000
If to the Collateral Agent:
[Xxxxx Fargo & Company]
Sixth and Marquette; M.S. 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxx X. Xx Xxxxx
Facsimile: (000) 000-0000
The Company, the Trustee or the Collateral Agent, by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five (5) Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA
52
Section 313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not
the addressee receives it.
If the Company mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 1.05 hereof) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 1.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 12.05. Legal Holidays.
In any case where any interest payment date or any maturity
date with respect to any Note shall not be a Business Day, then
(notwithstanding any other provisions of this Indenture, the Notes or the
Parent Guarantee) payment of interest or principal need not be made on such
date but may be made on the next succeeding Business Day.
Section 12.06. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or the Guarantor, solely by virtue
of being such, shall have any liability for any obligations of the Company or
the Guarantor under the Notes, the
53
Parent Guarantee, this Indenture or the Security Documents (including the
Security Agreement) or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Parent Guarantee. Such waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the Commission that such a waiver is against public policy.
Section 12.07. Governing Law.
THIS INDENTURE, THE NOTES AND THE PARENT GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF.
Section 12.08. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.09. Successors and Assigns.
All covenants and agreements in this Indenture and the Notes
by the Company shall bind its respective successors and assigns, whether so
expressed or not. All covenants and agreements in this Indenture and the Notes
by the Trustee shall bind its respective successors and assigns, whether so
expressed or not.
Section 12.10. Severability.
In case any provision in this Indenture or in the Notes or
the Parent Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 12.11. Counterpart Originals.
The parties may sign any number of counterpart copies of
this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 12.12. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference
54
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures appear on following page.]
55
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed in New York, New York as of the day and year
first above written.
Dated: , 1999 AVATEX FUNDING, INC.
By:
----------------------------------------
Name:
Title:
Dated: , 1999 AVATEX CORPORATION
By:
----------------------------------------
Name:
Title:
Dated: , 1999 [XXXXX FARGO & COMPANY],
as Trustee
By:
----------------------------------------
Name:
Title:
56
Exhibit A
(Face of Note)
[Unless and until it is exchanged in whole or in part for
Notes in definitive form, this Note may not be transferred except as a whole
by the Depository to a nominee of the Depositary or by a nominee of the
Depository to the Depository or another nominee of the Depositary or by the
Depository or any such nominee to a successor Depositary or a nominee of such
successor Depository. The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx ("DTC"), shall act as the Depository until a successor shall be
appointed by the Company. Unless this certificate is presented by an
authorized representative of DTC to the Company or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein].1
6.75% Notes due 2002
No. _____ Cusip No: ___________
AVATEX FUNDING, INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of
$___________ (_____________ Dollars) on ____________ ___, 2002.
Interest Payment Dates: ________ 15 and ______15
Record Dates: _________ 1 and __________ 1
AVATEX FUNDING, INC.
By:
------------------------------
Name:
Title:
-----------
1. This paragraph should be included only if the Note is issued in global form.
This is one of the 6.75% Notes due 2002 referred to in the
within-mentioned Indenture:
[XXXXX FARGO & COMPANY],
as Trustee
By:
------------------------------
Authorized Signature
A-2
(Back of Note)
6.75% Notes due 2002
Capitalized terms used herein (but not otherwise defined)
shall have the meanings assigned to them in the Indenture referred to below.
1. Interest. Avatex Funding, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the outstanding principal amount of
this Note at the rate of 6.75% per annum. The Company shall pay interest
semi-annually, in cash, in arrears on ___ 15 and ___ 15 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of original issuance; provided that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be 15, 1999. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Notes (except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on ___ 1 and ___ 1 next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date. The Notes will be payable as to principal and
interest at the office or agency of the Company maintained for such purpose, or
at the option of the Company, payment of interest may be made by check mailed to
the Holders at their addresses set forth in the register of Holders.
3. Paying Agent and Registrar. Initially, [Xxxxx Fargo &
Company], the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of __________ , 1999 (as amended, supplemented or otherwise
modified from time to time, the "Indenture") among the Company, the Guarantor
party thereto and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms.
5. Optional Redemption. The Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' written notice, at a redemption price
equal to 100% of principal
A-3
amount of the Notes to be redeemed, together with accrued and unpaid interest
thereon to the applicable redemption date.
In the event the Company receives an Extraordinary Dividend
on account or in respect of the Pledged Collateral, the Company may use all or
part of the proceeds of such Extraordinary Dividend to make an offer to all
Holders of Notes (the "Extraordinary Dividend Offer") to purchase Notes at an
offer price in cash in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest thereon to the date of purchase. Any
Extraordinary Dividend Offer shall be consummated in accordance with the
procedures set forth in the Indenture.
6. Mandatory Redemption. The Company shall not be required
to make mandatory redemption or sinking fund payments with respect to the
Notes.
7. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes may be
redeemed in part, provided that no Notes shall be redeemed in a principal
amount that is less than $1.00. On and after the redemption date, interest
ceases to accrue on Notes or portions thereof called for redemption.
8. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1.00 and integral
multiples of $1.00. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee 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 Company need not exchange or register the transfer of
any Note or portion of a Note selected for redemption. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before
a selection of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
10. Security. The due and punctual payment of the principal
of and interest on the Notes when and as the same shall be due and payable,
whether on an Interest Payment Date, at maturity, by acceleration, repurchase,
redemption or otherwise, and interest on any overdue principal of and interest
on the Notes and performance of all other obligations of the Company to the
Holders or the Trustee under this Indenture and the Notes, according to the
terms hereunder or thereunder, shall be secured to the extent provided in the
Security Agreement which the Company has entered into simultaneously with the
execution of this Indenture. Each Holder of Notes, by its acceptance thereof,
consents and agrees to the terms of the Security Agreement (including, without
limitation, the provisions providing for foreclosure) as the same may be in
effect or may be amended from time to time in accordance with their terms and
authorizes and directs
A-4
the Trustee or the Collateral Agent, as the case may be, to enter into the
Security Agreement and to perform their respective obligations and exercise
their respective rights thereunder in accordance therewith.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture, the Notes, the Parent Guarantee issued hereunder
and the Security Documents may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (excluding, as part of such majority, consents obtained in
connection with a purchase of, or a tender offer or exchange offer for, the
Notes), and, subject to the terms of the Indenture, the Notes, the Parent
Guarantee and the Security Documents, any existing default or compliance with
any provision of the Indenture, the Notes, the Parent Guarantee or the
Security Documents may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes (excluding consents obtained
in connection with a tender offer or exchange offer for the Notes); provided,
however, that the consent of the Holders of at least 66-2/3% in principal
amount of the Notes then outstanding (excluding, as part of such 66-2/3%,
consents obtained in connection with a purchase of, or a tender offer or
exchange offer for, the Notes) shall be required for any amendment or
supplement of, or waiver of any existing Default or compliance with any
provisions of, Section 4.08, 4.09, 4.10 or 5.01 of the Indenture. Without the
consent of any Holder of Notes, the Company, the Guarantor and the Trustee may
amend or supplement the Indenture, the Notes, the Parent Guarantee or the
Security Documents to cure any manifest error, defect or inconsistency; to
provide for uncertificated Notes in addition to or in place of certificated
Notes; to comply with Article 10 of the Indenture; to make any change that
would provide any additional rights or benefits to the Holders of the Notes or
that does not adversely affect the legal rights hereunder of any such Holder;
to comply with requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act; to enter
into additional or supplemental Security Documents; or to provide for the
appointment of a successor trustee in compliance with the requirements of
Section 7.08 of the Indenture.
12. Defaults and Remedies. Each of the following constitutes
an "Event of Default": (a) default for 15 days in the payment when due of
interest on the Notes; (b) default for 5 days in payment when due of the
principal of the Notes; (c) failure by the Company or the Guarantor, as
applicable, to comply with the provisions of Section 4.09, 4.10, 5.01 or 10.03
of the Indenture; (d) failure by the Company for 21 days after written notice
to comply with any of its other covenants or agreements in the Indenture, the
Notes or the Security Agreement (including the failure to provide the
Collateral Agent under the Security Agreement, for the benefit of the Holders
of the Notes, with a continuing first-priority Lien on the Pledged
Collateral), or the failure, after 21 days written notice thereof, of any of
the representations or warranties in the Security Agreement to be true and
correct in all material respects; (e) failure by the Guarantor to perform any
covenant set forth in the Parent Guarantee, or the repudiation by the
Guarantor of its obligations under the Parent Guarantee or the
unenforceability of the Parent Guarantee against the Guarantor for any reason,
unless, in each such case, the
A-5
Guarantor and has no indebtedness for borrowed money outstanding at such time or
at any time thereafter; and (f) certain events of bankruptcy with respect to the
Company.
If any Event of Default occurs and is continuing, the
Trustee or the holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default specified in
clause (f) or (g) of Section 6.01 of the Indenture with respect to the
Company, all outstanding Notes will become due and payable without further
action or notice. Holders of the Notes may not enforce the Indenture or the
Notes except as provided in this Indenture.
Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee or the
Collateral Agent in its exercise of any trust or power, including the exercise
of any remedy under the Security Agreement. The Holders of a majority in
aggregate principal amount of the Notes then outstanding, by notice to the
Trustee and the Collateral Agent, may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences
under this Indenture, except a continuing Default or Event of Default in the
payment of interest on or principal of the Notes, and except in connection
with a purchase of, or a tender offer or exchange offer for, the Notes.
Notwithstanding the foregoing, the consent of Holders of at least 66-2/3% in
principal amount of the Notes then outstanding (excluding, as part of such
66-2/3%, consents obtained in connection with a purchase of, or a tender offer
or exchange offer for, the Notes) shall be required for any waiver of any
existing Default or Event of Default with respect to the Company's
non-compliance with Section 4.08, 4.09, 4.10 or 5.01 of the Indenture.
13. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company, and may otherwise deal with the Company, as
if it were not the Trustee.
14. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator or stockholder of the Company or the
Guarantor, solely by virtue of being such, shall have any liability for any
obligations of the Company or the Guarantor under the Notes, the Parent
Guarantee, the Indenture or the Security Documents (including the Security
Agreement) or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
16. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minor Act).
A-6
17. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
18. Governing Law. The internal law of the State of New York
shall govern and be used to construe the terms of this Note, without regard to
the choice of law rules thereof.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Avatex Funding, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to _______________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_____________________________________________________
to transfer this Note 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 face of this Note)
Signature Guarantee.
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 3.10 of the Indenture, check the box below:
[_] Section 3.10
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 3.10 of the Indenture, state the amount you
elect to have purchased: $_____________
Date: ________ Your Signature:______________________________________________
(Sign exactly as your name appears on the Note)
Tax Indemnification No.:_____________________________________
Signature Guarantee.
Note: Signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Register, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
A-9
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES2
The following exchanges of a part of this Global Note for
Notes in definitive form have been made:
Principal Amount
of this Global
Amount of decrease Amount of increase Note following Signature of
Date in Principal Amount in Principal Amount such decrease authorized
of Exchange of this Global Note of this Global Note (or increase) officer of Trustee
----------- ------------------- ------------------- ------------- ------------------
----------
2. This should be included only if the Note is issued in global form.
Exhibit B
---------
FORM OF SPECIAL COMPLIANCE CERTIFICATE
--------------------------------------
(see attached)
Exhibit C
---------
FORM OF NOTATION OF PARENT GUARANTEE ON NOTE
--------------------------------------------
Pursuant to the Indenture, the Guarantor has unconditionally
guaranteed (a) the due and punctual payment of the principal of and interest
on the Notes, whether at stated maturity, by acceleration, call for redemption
or otherwise, (b) the due and punctual payment of interest on the overdue
principal of, and interest, to the extent lawful, on the Notes and (c) that in
case of any extension of time of payment or renewal of any Notes or any of
such other Obligations, the same will be promptly paid in full when due in
accordance with the terms of the extension of renewal, whether at stated
maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that the Parent
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of the Guarantor under the Parent Guarantee shall be limited to such
amount as will not, after giving effect thereto, and to all other liabilities
of the Guarantor, result in such amount constituting a fraudulent transfer or
conveyance.
The Parent Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which the
Parent Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual or facsimile signature of one of its authorized
officers.
Dated:__________, _1999 AVATEX CORPORATION
By:
----------------------------------------
Name:
Title:
Exhibit D
---------
FORM OF SUPPLEMENTAL INDENTURE
------------------------------
Supplemental Indenture (this "Supplemental Indenture"),
dated as of __________, _____ among Avatex Funding, Inc., a Delaware
corporation (the "Company"), [Guarantor], a ________________ corporation (the
"New Guarantor"), and [Xxxxx Fargo & Company], as trustee under the indenture
referred to below (the "Trustee"). Capitalized terms used herein and not
defined herein shall have the meaning ascribed to them in the Indenture (as
defined below).
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an indenture, dated as of , 1999 (the "Indenture"), providing
for the issuance of $[34,000,000] aggregate principal amount of 6.75% Notes
due 2002 (the "Notes");
WHEREAS, [describe circumstances leading to New Guarantor
assuming obligations of Parent
Guarantee]; and
WHEREAS, pursuant to Section 8.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company, the New Guarantor and the Trustee mutually covenant
and agree for the equal and ratable benefit of the Holders of the Notes as
follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement To Guarantee. The New Guarantor hereby agrees
to guarantee the Company's Obligations under the Notes and the Indenture on
the terms and subject to the conditions set forth in Article 10 of the
Indenture and to be bound by all other applicable provisions of the Indenture.
3. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator, shareholder or agent of the
Guarantor, solely by virtue of being such, shall have any liability for any
obligations of the Company or the Guarantor under the Notes, the Parent
Guarantee, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes and the
Parent Guarantee.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
5. Counterparts. The parties may sign any number of copies
of this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
7. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the correctness of the recitals
of fact contained herein, all of which recitals are made solely by the New
Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated:____________ __, ____ AVATEX FUNDING, INC.
By:
----------------------------------------
Name:
Title:
Dated:____________ __, ____ [Name of New Guarantor]
By:
----------------------------------------
Name:
Title:
Dated:____________ __, ____ [XXXXX FARGO & COMPANY],
as Trustee
By:
----------------------------------------
Name:
Title:
D-2
Exhibit E
FORM OF SECURITY AGREEMENT
--------------------------
(see attached)
