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EXHIBIT T3C
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XXXX INTERNATIONAL CORP.
AND
U.S. BANK TRUST, NATIONAL ASSOCIATION
AS TRUSTEE
INDENTURE
DATED AS OF AUGUST 20, 1999
SENIOR SUBORDINATED ZERO COUPON NOTES DUE JULY 1, 2007
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XXXX INTERNATIONAL CORP.
Reconciliation and Tie between Trust Indenture Act of 1939
and the Indenture dated as of August 20, 1999
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
ss. 310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.08; 7.10; 11.02
(c) N.A.
ss. 311(a) 7.11
(b) 7.11
(c) N.A.
ss. 312(a) 2.06
(b) 11.03
(c) 11.03
ss. 313(a) 7.06
(b) 7.06; 11.02
(c)(1) 2.06; 7.06; 11.02
(c)(2) N.A.
(c)(3) 2.06; 7.06; 11.02
(d) 7.06
ss. 314(a) 4.11, 11.02
(b) N.A.
(c)(1) 11.04
(c)(2) 11.04
(c)(3) N.A.
(d) N.A.
(e) 11.05
(f) N.A.
ss. 315(a) 7.01(b)
(b) 7.05; 11.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
ss. 316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
ss. 317(a)(1) 6.08
(a)(2) 6.09
(b) 2.05; 11.02
ss. 318(a) 11.01
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N.A. means Not Applicable.
NOTE: This Reconciliation and Tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE......................................................1
Section 1.01 Definitions...................................................................1
Section 1.02 Incorporation by Reference of Trust Indenture Act.............................6
Section 1.03 Rules of Construction.........................................................7
ARTICLE 2. THE NOTES.......................................................................................8
Section 2.01 Form and Dating...............................................................8
Section 2.02 Execution, Amount, Authentication and Delivery................................8
Section 2.03 Accrual of Original Issue Discount; Interest..................................9
Section 2.04 Registrar and Paying Agent....................................................9
Section 2.05 Paying Agent to Hold Money In Trust..........................................10
Section 2.06 Noteholder Lists.............................................................11
Section 2.07 Transfer and Exchange........................................................11
Section 2.08 Mutilated, Defaced, Destroyed, Lost and Stolen Notes.........................12
Section 2.09 Treasury Notes...............................................................13
Section 2.10 Temporary Notes..............................................................13
Section 2.11 Cancellation.................................................................14
ARTICLE 3. REDEMPTION.....................................................................................14
Section 3.01 Optional Redemption..........................................................14
Section 3.02 Redemption Notice to Trustee.................................................14
Section 3.03 Selection of Notes to be Redeemed............................................15
Section 3.04 Notice of Redemption.........................................................15
Section 3.05 Payment of Notes Called for Redemption.......................................16
ARTICLE 4. COVENANTS......................................................................................17
Section 4.01 Payment of Notes.............................................................17
Section 4.02 Maintenance of Office or Agency..............................................17
Section 4.03 Liquidation of the Company...................................................17
Section 4.04 Limitation on Repayment of Subordinated Indebtedness.........................18
Section 4.05 Insurance....................................................................18
Section 4.06 Waiver of Stay, Extension or Usury Laws......................................18
Section 4.07 Waiver of Certain Covenants..................................................18
Section 4.08 Corporate Existence..........................................................18
Section 4.09 Payment of Taxes and other Claims............................................19
Section 4.10 Notices......................................................................19
Section 4.11 Reports and Compliance Certificates..........................................19
Section 4.12 Books, Records, Access; Confidentiality......................................21
Section 4.13 Compliance with Laws, etc....................................................21
Section 4.14 Restricted Payment...........................................................21
Section 4.15 Restricted Payment...........................................................22
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ARTICLE 5. SUCCESSOR CORPORATION..........................................................................22
Section 5.01 Covenant Not to Consolidate, Merge, Convey or Transfer
Except Under Certain Conditions..............................................22
Section 5.02 Successor Person Substituted.................................................23
ARTICLE 6. DEFAULT AND REMEDIES...........................................................................23
Section 6.01 Events of Default............................................................23
Section 6.02 Acceleration.................................................................25
Section 6.03 Other Remedies...............................................................25
Section 6.04 Waiver of Past Defaults......................................................25
Section 6.05 Control by Majority..........................................................26
Section 6.06 Limitation on Suits..........................................................26
Section 6.07 Rights of Holders to Receive Payment.........................................26
Section 6.08 Collection Suit by Trustee...................................................27
Section 6.09 Trustee May File Proofs of Claim.............................................27
Section 6.10 Application of Proceeds......................................................27
Section 6.11 Undertaking for Costs........................................................28
Section 6.12 Restoration of Rights on Abandonment of Proceedings..........................28
Section 6.13 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default............................................................28
ARTICLE 7. TRUSTEE........................................................................................29
Section 7.01 Duties of Trustee............................................................29
Section 7.02 Rights of Trustee............................................................30
Section 7.03 Individual Rights of Trustee.................................................31
Section 7.04 Trustee's Disclaimer.........................................................31
Section 7.05 Notice of Defaults...........................................................31
Section 7.06 Reports and Notices by Trustee to Holders....................................31
Section 7.07 Compensation and Indemnity...................................................31
Section 7.08 Replacement of Trustee.......................................................32
Section 7.09 Successor Trustee by Merger, etc.............................................33
Section 7.10 Eligibility; Disqualification................................................33
Section 7.11 Preferential Collection of Claims Against Company............................34
Section 7.12 Investment of Funds by the Trustee...........................................34
ARTICLE 8. DISCHARGE OF INDENTURE.........................................................................34
Section 8.01 Termination of Company's Obligations.........................................34
Section 8.02 Application of Trust Money...................................................35
Section 8.03 Repayment to Company.........................................................35
Section 8.04 Reinstatement................................................................36
ARTICLE 9. AMENDMENTS, SUPPLEMENTS AND WAIVERS............................................................37
Section 9.01 Without Consent of Holders...................................................37
Section 9.02 With Consent of Holders......................................................37
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Section 9.03 Compliance with Trust Indenture Act..........................................38
Section 9.04 Revocation and Effect of Consents............................................38
Section 9.05 Notation on or Exchange of Notes.............................................39
Section 9.06 Trustee to Sign Amendments, etc..............................................39
Section 9.07 Effect of Supplement and/or Amendment to Indenture...........................39
ARTICLE 10. SUBORDINATION..................................................................................40
Section 10.01 Notes Subordinated to Senior Indebtedness....................................40
Section 10.02 No Payment on Notes in Certain Circumstances.................................40
Section 10.03 Notes Subordinated to Prior Payment of All Senior Indebtedness
on Dissolution, Liquidation or Reorganization................................41
Section 10.04 Obligations of the Company Unconditional.....................................41
Section 10.05 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice............................................................42
Section 10.06 Application by Trustee of Amounts Deposited With It..........................42
Section 10.07 Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness....................................42
Section 10.08 Trustee to Effectuate Subordination of Securities............................43
Section 10.09 Right of Trustee to Hold Senior Indebtedness.................................43
Section 10.10 Article 10 Not to Prevent Events of Default..................................43
Section 10.11 No Fiduciary Duty of Trustee to Holders of Senior Indebtedness...............43
Section 10.12 Article Applicable to Paying Agent...........................................43
ARTICLE 11. MISCELLANEOUS..................................................................................44
Section 11.01 Trust Indenture Act Controls.................................................44
Section 11.02 Notices......................................................................44
Section 11.03 Communications By Holders With Other Holders.................................45
Section 11.04 Certificate as to Conditions Precedent.......................................45
Section 11.05 Statements Required In Certificate or Opinion................................45
Section 11.06 Rules By Trustee, Paying Agent, Registrar....................................46
Section 11.07 Payment Dates................................................................46
Section 11.08 Governing Law................................................................47
Section 11.09 No Adverse Interpretation of Other Agreements................................47
Section 11.10 No Recourse Against Others...................................................47
Section 11.11 Provisions of Indenture for the Sole Benefit of Parties,
Noteholders and Certain holders of Senior Indebtedness.......................47
Section 11.12 Successors...................................................................47
Section 11.13 Duplicate Originals and Counterparts.........................................47
Section 11.14 Severability.................................................................47
Section 11.15 Effect of Headings...........................................................48
SIGNATURES.................................................................................................48
Exhibit A - Form of Senior Subordinated Zero Coupon Note
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INDENTURE dated as of August 20, 1999, between XXXX INTERNATIONAL
CORP., an Ohio corporation (the "Company"), and U.S. BANK TRUST, NATIONAL
ASSOCIATION, a banking association organized and existing under the laws of the
United States as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the issuance of its Senior Subordinated
Zero Coupon Notes due July 1, 2007 (the "Notes") and, to provide, among other
things, for the authentication, delivery and administration thereof, the Company
has duly authorized the execution and delivery of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
The following terms (except as otherwise expressly provided or unless
the context otherwise clearly requires), for all purposes of this Indenture,
shall have respective meanings specified in this Section 1.01.
"Affiliate" means, with respect to any specified Person, any other
Person which directly or indirectly controls or is controlled by, or is directly
or indirectly under common control with, such Person, as the case may be. For
the purposes of this definition, "control" (including "controlled by" and "under
common control with") means the power, directly or indirectly, to direct or
cause the direction of the management and policies of such Person, as the case
may be, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means any Registrar, Paying Agent or co-Registrar or co-Paying
Agent.
"Bankruptcy Court" means the United States Bankruptcy Court for the
District of Delaware.
"Bankruptcy Law" has the meaning provided in Section 6.01.
"Board of Directors" means the Board of Directors of the Company or any
committee of such board duly authorized to act in respect of any particular
matter hereunder.
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"Business Day" means any day other than a Saturday, Sunday or legal
holiday, on which banks located in the city in which the principal corporate
trust office of the Trustee is located are not authorized or obligated by law to
remain closed.
"Capitalized Lease Obligation" means, as applied to any Person at the
time any determination thereof is to be made for any period, an obligation of
such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with generally
accepted accounting principles, and the amount of such obligation shall be the
capitalized amount of such obligation determined in accordance with such
principles.
"Company" means the party named as such in the first paragraph of this
Indenture or any obligor on the Notes until a successor replaces it pursuant to
Article 7 of this Indenture and thereafter means the successor.
"Corporate Trust Office" when used with respect to the Trustee means
the office of the Trustee at which at any particular time its corporate trust
business is administered and which, at the date hereof, is located at 0000
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000.
"Custodian" has the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default.
"Event of Default" has the meaning provided in Section 6.01.
"Holder," "Holder of Notes" or "Noteholder" means the person in whose
name a Note is registered on the Register.
"Indebtedness" means, with respect to any Person at any date, without
duplication, (a) all indebtedness, obligations and other liabilities (contingent
or otherwise) of such Person for borrowed money (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a portion
thereof), (b) all obligations and other liabilities (contingent or otherwise) of
such Person evidenced by bonds, notes or other similar instruments, (c) all
obligations and other liabilities (contingent or otherwise) of such Person in
respect of letters of credit or other similar instruments (and reimbursement
obligations with respect thereto), (d) all obligations and other liabilities
(contingent or otherwise) of such Person to pay the deferred and unpaid purchase
price of property or services (other than any such obligations that represent
trade payables or accrued expenses incurred in the ordinary course of business),
(e) all Capitalized Lease Obligations of such Person, (f) all Indebtedness of
others secured by a lien on any asset or assets of such Person, whether or not
such Indebtedness is assumed by such Person (and, if not assumed, such
Indebtedness shall be limited to the fair market value of such asset or assets
as determined on the date such Indebtedness was incurred), and (g) all
Indebtedness of others guaranteed by such Person to the extent of such
guarantee. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability of such Person for any such contingent
obligations at such date. A change in generally accepted accounting
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principles that results in an obligation of the Company existing at the time of
such change becoming Indebtedness shall not be deemed an incurrence of such
Indebtedness.
"Indenture" means this Indenture as originally executed, as may be
amended or supplemented from time to time in accordance with the applicable
provisions hereof.
"Issue Price" means with respect to a Note, the amount set forth as
Issue Price on the face of such Note.
"Junior Security" of a Person means any Indebtedness of such Person
that is subordinated in right of payment to the Notes and has no scheduled
installment of principal due, by redemption, sinking fund payment or otherwise,
on or prior to July 1, 2007.
"Lien" means, with respect to any Property, any conveyance in trust,
assignment, mortgage, lien, pledge, charge, security interest or encumbrance of
any kind (including any conditional sale or other title retention agreement or
lease in the nature thereof) in respect of such Property.
"Net Income" ("Net Loss") of any Person for any period means the net
income (net loss) of such Person for such period after deducting any dividends
paid on such Person's preferred stock, determined in accordance with generally
accepted accounting principles.
"Net Cash Proceeds" means with respect to the sale, exchange, lease,
sublease or other disposition of any Property (voluntary or involuntary, and
including without limitation any taking by condemnation or eminent domain or
loss due to fire or other casualty), the cash proceeds (including without
limitation proceeds of insurance and condemnation awards or similar recoveries)
received by the Company from or in connection with such transaction (including
any cash received by way of deferred payment or liquidation of any securities or
other assets, received in consideration for such sale, exchange, lease, sublease
or other disposition, as and when received); less (i) reasonable costs necessary
to effectuate such transaction including brokerage fees or commissions and
reasonable fees and expenses of attorneys and other professionals, (ii) state,
federal or local transfer taxes and other taxes, including without limitation,
recording taxes, documentation stamp taxes, but excluding capital gains or other
federal, state or local taxes based on income, and (iii) prorated closing costs,
including without limitation fees and assessments; provided that, in the case of
any Sublease, the Net Cash Proceeds shall be determined as of the end of each
calendar quarter and shall be equal to the net amount of all rents and other
payments received by the Company during such calendar quarter with respect to
such Sublease over and above the rents and other payments due and payable by the
Company for such calendar quarter pursuant to the underlying Sublease.
"Notes" means the Senior Subordinated Zero Coupon Notes due July 1,
2007 of the Company, as amended or supplemented from time to time, that are
authenticated and delivered under this Indenture.
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"Officer" means the Chief Executive Officer, the President, any Vice
President of any grade, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Secretary or the Controller of the Company.
"Officer's Certificate" means a certificate signed by an Officer of the
Company satisfying the requirements of Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion from the General Counsel
of the Company, legal counsel to the Company (which may be Xxxxx, Xxxxxxxx &
Xxxxxxx, LLP or Xxxxxxxx & Xxxxxxxx) or another legal counsel who is reasonably
acceptable to the Trustee, which Opinion of Counsel shall comply with Sections
11.04 and 11.05. The counsel may be an employee of the Company. The acceptance
by the Trustee (without written objection to the Company during the fifteen (15)
Business Days following receipt) of, or its action on, an opinion of counsel not
specifically referred to above shall be sufficient evidence that such counsel is
acceptable to the Trustee.
"Original Issuance Date" means the date specified as such in the Form
of Note attached hereto as Exhibit A, which date will be the Effective Date.
"Outstanding" or "outstanding" when used with respect to Notes or a
Note, means all Notes theretofore authenticated and delivered under this
Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes or portions thereof, for which payment in the
necessary amount has been deposited with the Trustee or any Paying
Agent in trust except to the extent provided in Section 8.01; and
(c) Notes which have been paid, or for which other Notes shall
have been authenticated and delivered in lieu thereof or in
substitution therefor pursuant to the terms of Section 2.07, unless
proof satisfactory to the Trustee is presented that any such Notes are
held by holders in due course.
A Note does not cease to be Outstanding because the Company or one of its
Affiliates holds the Note; provided, however, that in determining whether the
Holders of the requisite aggregate principal amount of Notes Outstanding have
given any request, demand, authorization, direction, notice, consent or waiver
under this Indenture, Section 2.08 shall be applicable.
"Original Issue Discount" with respect to a Note means the difference
between the Issue Price and Principal Amount at Maturity of such Note, which
shall accrue as described in such Note.
"Paying Agent" has the meaning provided in Section 2.04.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Preferred Stock" means the capital stock of the Company having a
preference in liquidation or dividends over the Company's common stock.
"Principal Amount at Maturity" with respect to a Note shall be the
amount set forth as Principal Amount at Maturity on the face of such Note.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Record Date" means the fifteenth (15th) day preceding payment date of
Principal Amount at Maturity or Redemption Date, whether or not a Business Day.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture and
the Notes.
"Register" has the meaning provided in Section 2.04.
"Registrar" has the meaning provided in Section 2.04.
"Request" means a written request for the action therein specified
signed on behalf of the Company by any Officer of the Company referred to in the
definition of the term "Officer's Certificate" and delivered to the Trustee.
Each Request shall be in form and substance reasonably satisfactory to the
Trustee and be accompanied by an Officer's Certificate if and to the extent
required by Section 11.04.
"Restricted Payment" has the meaning provided in Section 4.14.
"SEC" means the Securities and Exchange Commission and any government
agency succeeding to its functions.
"Senior Indebtedness" of the Company means (i) all Indebtedness of the
Company, whether currently outstanding or hereafter issued, unless, by the terms
of the instrument creating or evidencing such Indebtedness, it is provided that
such Indebtedness is not superior in right of payment to the Notes or to other
Indebtedness which is pari passu with or subordinated to the Notes, and (ii) any
modifications, refunding, deferrals, renewals or extensions of any such
Indebtedness or securities, notes or other evidences of Indebtedness issued in
exchange for such Indebtedness.
"Significant Subsidiary" means any Subsidiary (as defined herein) which
is also a "Significant Subsidiary" within the meaning of Article 1 of Regulation
S-X of the Securities Exchange Act of 1934, as amended.
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"Subordinated Indebtedness" means any Indebtedness of the Company which
by its terms is subordinated in right of payment to the Notes.
"Subsidiary" means a corporation a majority of capital stock of which
having voting power to elect, under ordinary circumstances, a majority of
directors is at the time, directly or indirectly, owned by the Company, by the
Company and one or more Subsidiaries of the Company or by one or more
Subsidiaries of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb), as amended, as in effect on the date as of which this Indenture
was executed.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means the successor.
"Trust Officer" means any officer in the corporate trust department of
the Trustee, or any other officer or assistant officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
"U.S." or "United States" means the United States of America.
"U.S. Government Obligations" means securities which are (a) direct
obligations of the United States government for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
government the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States government, which, in either
case, is not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company (as
defined in Section 3(a)(2) of the Securities Act), as custodian with respect to
any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
Section 1.02 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
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"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms;
(c) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) references to documents, contracts or agreements, shall
include any and all supplements and amendments thereto;
(e) references to a specific Person shall include the
successors and assigns of such Person;
(f) references to "applicable laws" shall include statutes,
ordinances, rules, regulations, court and administrative decisions and
conditions, restrictions and limitations in licenses, permits,
approvals and authorizations issued or granted by federal, state or
local United States or foreign governmental bodies and agencies;
(g) unless otherwise specified in the computation of a period
of time from a specified date to a later specified date, the word
"from" means "from and including," and the words "to" and "until" each
mean "to but excluding";
(h) words in the singular include the plural, and words in the
plural include the singular;
(i) provisions apply to successive events and transactions;
(j) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subsection; and
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(k) All accounting terms used herein and not expressly defined
shall have the meanings given to them in accordance with generally
accepted accounting principles, and the term "generally accepted
accounting principles" shall mean generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of
the date of determination.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
The Notes and the Trustee's certificates of authentication shall be
substantially in the form of Exhibit A hereto. Any of the Notes may be issued
with the appropriate insertions, omissions, substitutions and variations, and
may have imprinted or otherwise reproduced thereon such notations, legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with the rules of any securities market in which the Notes are
admitted to trading, or to conform to general usage. The Company shall approve
the form of the Notes and any notation, legend or endorsement on them. Each Note
shall be dated the date of its authentication. No Note shall bear interest. The
Principal Amount at Maturity shall be paid as provided in the Note.
The definitive Notes shall be printed, lithographed, or otherwise
produced in any manner as determined by the Company, as evidenced by the
execution of such Notes by Officers of the Company.
The terms and provisions contained in the Notes, annexed hereto as
Exhibit A shall constitute, and are hereby expressly made, a part of this
Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Section 2.02 Execution, Amount, Authentication and Delivery.
Two (2) Officers shall sign the Notes for the Company by manual or
facsimile signature and such signature may be imprinted or otherwise reproduced
on the Notes. The Company's seal shall be affixed to or reproduced on the Notes.
Typographical or other errors or defects in any such reproduction of the seal or
any such signature shall not affect the validity or enforceability of any Note
which has been duly authenticated and delivered by the Trustee. If an Officer
whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless. A Note shall not
be valid until the Trustee manually signs the certificate of authentication on
the Note. The signature of the Trustee shall be conclusive evidence and the only
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evidence, that the Note has been authenticated and delivered under this
Indenture and is entitled to the benefits of this Indenture.
The Trustee shall authenticate Notes for issue in the aggregate
Principal Amount at Maturity of up to $15,000,000 (other than Notes issued
pursuant to Section 2.07 hereof) upon a written order from the Company signed by
an Officer of the Company. The order shall specify the amount of Notes to be
authenticated, the date on which the original issue of Notes is to be
authenticated, provide instructions with respect to the delivery thereof and
shall be accompanied by (a) an Officer's Certificate which certifies that such
Notes are being issued pursuant to and in accordance with this Indenture and
that all conditions precedent to the issuance have been complied with, and (b)
an Opinion of Counsel to the effect that such Notes have been duly authorized,
executed and delivered by the Company pursuant to and in accordance with this
Indenture and, upon authentication by the Trustee, such Notes will be the legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms subject to customary exceptions for bankruptcy and
equitable remedies.
The aggregate Principal Amount at Maturity of Notes issued pursuant to
this Section 2.02 (other than Notes issued pursuant to Section 2.07 hereof)
shall not exceed $15,000,000.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 or any integer multiple thereof and in denoniminations
of less than $1,000, provided that after the Notes are initially issued
hereunder (as determined by the Company), Notes will not be issued in
denominations of less than $1,000 except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. 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,
any guarantor or any Affiliate of the Company.
Section 2.03 Accrual of Original Issue Discount; Interest.
Original Issue Discount shall accrue with respect to the Notes at the
rate set forth in paragraph 1 of the Notes commencing on the Issue Date of the
Notes. There shall be no periodic payments of interest on the Notes. In case of
an Event of Default, the principal amount of the Notes that may be declared due
and payable shall be the amount at which the Company could then redeem the Notes
under Section 3.01 hereof (assuming there had been no Event of Default).
Section 2.04 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange
("Register"). Such Register shall be in written form in the English language or
any other form capable of being converted into such form within a reasonable
time. At all
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reasonable times such Register shall be open for inspection by Trustee. The
Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company may enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The 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, the Trustee shall act as such.
The Company initially appoints U.S. Bank Trust, National Association as
Registrar and Paying Agent.
Section 2.05 Paying Agent to Hold Money In Trust.
Each Paying Agent shall hold in trust for the benefit of Noteholders or
the Trustee all money or Notes held by the Paying Agent for the payment of
principal of or interest on the Notes (whether such money has been paid to it or
Notes have been delivered to it by the Company or any other obligor on the
Notes), and shall notify the Trustee of any default by the Company (or any other
obligor on the Notes) in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any payment default under Section 6.01(a), upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds distributed. Upon doing so the Paying Agent shall have
no further liability for the money.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the Notes, hold in irrevocable trust for the
benefit of the Persons entitled thereto a sum, sufficient to pay the principal
and accrued Original Issue Discount so becoming due until such sums shall be
paid or issued to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of such action or any failure so to act.
The Company will, one (1) Business Day prior to each due date for the
payment of the principal and accrued Original Issue Discount on any Notes,
deposit with a Paying Agent a sum in same day funds, sufficient to pay the
principal and accrued Original Issue Discount so becoming due, such sum to be
held in irrevocable trust for the benefit of the Persons entitled to such
principal and accrued Original Issue Discount 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 2.05,
that such Paying Agent will:
(a) hold all sums received by it as such agent for the payment
of the principal and accrued Original Issue Discount on Notes in trust
for the benefit of the Persons entitled
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thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) promptly give the Trustee notice of any failure by the
Company to make any payment of the principal of, or accrued interest
on, the Notes when the same shall be due and payable; and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money
held by it as Paying Agent.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal and accrued Original
Issue Discount on any Note and remaining unclaimed for two (2) years after such
principal and accrued Original Issue Discount has become due and payable shall
be paid to the Company on its request, or (if then held by the Company) shall be
discharged from such trust, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, 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 regard to such money, and all liability of the Company as trustee
thereof, shall thereupon cease.
Section 2.06 Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee on or before the date of payment of Principal Amount at Maturity 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 Noteholders.
Section 2.07 Transfer and Exchange.
When Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer, the Registrar shall register the transfer as
requested if its requirements for such transfer are met. When Notes of
denominations less than $1,000 (that nevertheless sum to or are in excess of
$1,000) are presented to the Registrar or co-Registrar with a request to combine
such Notes into denominations of $1,000, the Registrar or co-Registrar shall
effect such combination (by issuing one or more Notes in denominations that are
integer multiples of $1,000 and one Note for any remainder less than $1,000) and
register the same if its requirements for such combinations are met. To permit
registrations of transfers or combinations, the Company shall execute and the
Trustee shall
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authenticate Notes at the Registrar's or co-Registrar's written request. All
Notes presented for registration of transfer or combination, redemption or
payment shall (if so required by the Company or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments in form
satisfactory to the Company and the Trustee, duly executed by the Holder or his
or her attorney duly authorized in writing. The Company shall not charge a fee
for registration of transfer or combination but the Company may require the
payment of any applicable transfer taxes.
The Registrar shall not be required to register the transfer or
exchange of (a) any Note for a period beginning at the opening of business
fifteen (15) Business Days before the mailing of a notice of redemption of Notes
and ending at the close of business on the day of such mailing or (b) any Note
selected, called or being called for redemption, except, in the case of any Note
to be redeemed in part, the portion thereof not to be redeemed.
All Notes issued upon any transfer of Notes shall be valid obligations
of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Notes surrendered upon such transfer.
Notwithstanding anything to the contrary contained herein, the Trustee
or Registrar shall have no duty whatsoever to monitor federal or state
securities laws other than to collect the Notes required herein, subject to the
TIA.
Section 2.08 Mutilated, Defaced, Destroyed, Lost and Stolen Notes.
In case any temporary or definitive Note shall become mutilated,
defaced or be apparently destroyed, lost or stolen, the Company in its
discretion may execute, and upon the written request of any authorized officer
of the Company, the Trustee shall authenticate and deliver, a new Note, bearing
a number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Note, or in lieu of and substitution for the Note so
apparently destroyed, lost or stolen. In every case the applicant for a
substitute Note shall furnish to the Company and to the Trustee and any agent of
the Company or the Trustee such security or indemnity as may be required by them
to indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the apparent
destruction, loss or theft of such Note and of the ownership thereof.
Upon the issuance of any substitute Note, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including, without
limitation, the fees and expenses of the Trustee) connected therewith. In case
any Note which has matured or is about to mature, or has been called for
redemption in full, shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Note, pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated or defaced Note), if the applicant for such payment
shall furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as any of them may require to save each
of them harmless from all risks, however remote, and, in every case of apparent
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence
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to their satisfaction of the apparent destruction, loss or theft of such Note
and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section
by virtue of the fact that any Note is apparently destroyed, lost or stolen
shall constitute an original additional contractual obligation of the Company,
whether or not the apparently destroyed, lost or stolen Note shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall also be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Notes duly
authenticated and delivered hereunder. All Notes shall be held and owned upon
the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of mutilated
or defaced or apparently destroyed, lost or stolen Notes and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have given or concurred in any amendment, request, demand, authorization,
direction, notice, consent or waiver under this Indenture, Notes held by the
Trustee under Section 2.02 and Notes owned by the Company, an Affiliate of the
Company, any other obligor or any Affiliate of such obligor shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such amendment, request, demand,
authorization, direction, notice, consent or waiver, only Notes held by the
Trustee under Section 2.02 or Notes which the Trustee knows are so owned shall
be so disregarded and deemed not to be Outstanding for the purpose of any such
determination. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or any other obligor on the Notes. In case of a dispute as to
such right, the Trustee acting in good faith shall be entitled to rely upon the
advice of counsel, including counsel for the Company. Upon request of the
Trustee, the Company shall promptly furnish to the Trustee an Officer's
Certificate listing and identifying all Notes, if any, held by the Trustee under
Section 2.02 and Notes known by the Company to be owned or held by or for the
account of any of the above described Persons; and subject to Sections 7.01 and
7.02 herein, the Trustee shall be entitled to accept such Officer's Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Notes not listed therein are Outstanding for the purpose of any such
determination.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare,
and, upon written order of the Company, the Trustee shall authenticate,
temporary Notes in any authorized denominations. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate and deliver
definitive Notes in
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exchange for temporary Notes. Until so exchanged, the temporary Notes shall be
entitled to the same benefits under this Indenture as definitive Notes.
Section 2.11 Cancellation.
The Company may at any time deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, redemption or payment. The Trustee
and no one else shall cancel all Notes surrendered for transfer, redemption,
payment or cancellation. The Company may not issue new Notes to replace Notes it
has paid or delivered to the Trustee for cancellation. All canceled Notes held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures or as directed in writing by the Company. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes unless
and until the same are delivered to the Trustee for cancellation.
ARTICLE 3.
REDEMPTION
Section 3.01 Optional Redemption.
The Notes Outstanding shall be subject to redemption at the option of
the Company as a whole or from time to time in part as provided herein. The
Company may redeem any Notes Outstanding from the date of issuance up to and
including September 30, 2000 by paying $450 per $1,000 face amount of the Notes.
The Company may redeem any Notes Outstanding from October 1, 2000 up to and
including September 30, 2001 by paying $500 per $1,000 face amount of the Notes.
The Company may redeem any Notes Outstanding from October 1, 2001 up to and
including September 30, 2002 by paying $550 per $1,000 face amount of the Notes.
The Company may redeem any Notes Outstanding from October 1, 2002 up to and
including September 30, 2003 by paying $600 per $1,000 face amount of the Notes.
The Company may redeem any Notes Outstanding from October 1, 2003 up to and
including September 30, 2004 by paying $700 per $1,000 face amount of the Notes.
The Company may redeem any Notes Outstanding from October 1, 2004 up to and
including September 30, 2005 by paying $800 per $1,000 face amount of the Notes.
The Company may redeem any Notes Outstanding from October 1, 2005 up to and
including September 30, 2007 by paying $1,000 per $1,000 face amount of the
Notes. The Securities Outstanding are redeemable at the amounts set forth in
this Section 3.01 regardless of the amount of accrued Original Issue Discount.
Section 3.02 Redemption Notice to Trustee.
The election of the Company to redeem Notes shall be evidenced by a
resolution of the Company's Board of Directors. If the Company elects to redeem
Notes as provided in Section 3.01, not less than forty-five (45) days prior to
the Redemption Date, it shall deliver to the Trustee a copy of the Board of
Directors resolution and an Officers' Certificate setting forth the Redemption
Date, the principal amount of Notes to be redeemed and all other information
needed for the notice to be given by the Trustee pursuant to Section 3.01 and
Section 3.04. Such Officers' Certificate shall be
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signed by an Officer and shall identify by registration and certificate number
all Notes owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Company or (b) an Affiliate of the Company.
The Company shall give the notice provided for in this Section at least
fifteen (15) days (unless a shorter notice shall be satisfactory to the Trustee)
prior to the date the Trustee must give notice pursuant to Section 3.04.
Section 3.03 Selection of Notes to be Redeemed.
If less than all the Notes are to be redeemed, the Trustee shall select
first the Notes in denominations of less than $1,000 to be redeemed, second the
Notes in increments of $1,000 chosen on as near an approximation of pro rata as
is practicable based on the amount of Notes held (in denominations that are
integral multiples of $1,000) by each beneficial owner, and third the Notes
chosen by lot or such other method as the Trustee shall deem fair and
appropriate. The Trustee shall make the selection from the Notes Outstanding not
previously called for redemption. The Trustee shall promptly notify the Company
in writing of Notes selected for redemption and in the case of partial
redemption the amount thereof to be redeemed.
Section 3.04 Notice of Redemption.
At least thirty (30) days but no more than sixty (60) days before a
Redemption Date, unless a shorter period shall be specified in the Notes or this
Indenture, the Trustee shall mail a notice of redemption by first class mail
postage prepaid to each Holder of Notes Outstanding at their last addresses as
they shall appear on the Register.
The notice shall state:
(a) the amount of each Note held by each such Holder to be
redeemed;
(b) the Redemption Date;
(c) the Redemption Price;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(f) the CUSIP number of Notes to be redeemed; and
(g) if the Company reserves the right to rescind its election
to redeem the Notes as permitted below, that it is doing so and the
means by which Holders will be notified whether or not the Company has
exercised the right so reserved; and
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(h) that, unless the Company rescinds its notice of redemption
or defaults in making the redemption payment, Original Issue Discount
on the Notes to be redeemed ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders of such
Notes is to receive payment of the Redemption Price upon surrender to
the Paying Agent of the Notes.
Except as provided below, once notice of redemption is mailed, all
Notes called for redemption shall become due and payable on the Redemption Date
and at the Redemption Price as provided in Section 3.01. Upon surrender to the
Paying Agent, such Notes shall be paid at the Redemption Price.
At least one (1) Business Day prior to the Redemption Date, the Company
shall deposit with the Paying Agent immediately available funds sufficient to
pay the Redemption Price of all Notes to be redeemed on that date, other than
Notes or portions thereof which have been delivered by the Company to the
Trustee for cancellation.
Notwithstanding the foregoing, the Company may reserve the right at any
time prior to the Redemption Date to rescind its election to redeem the Notes so
called for redemption by mailing a notice of cancellation of redemption by first
class mail postage prepaid to the Trustee and each Holder of Notes Outstanding
not later than five (5) Business Days prior to the proposed Redemption Date, and
any funds deposited with the Paying Agent to effect such redemption shall be
promptly repaid by the Paying Agent to the Company, provided, however, nothing
contained in this Section 3.04 shall prevent the application by the Trustee of
any money deposited with it hereunder to the payment of securities called for
redemption, or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it had not received the notice of the Company
to rescind its redemption.
Any notice when mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder of the
Note receives such notice. In any case, failure to give such notice or any
defect in such notice shall not affect the validity of any proceedings for
redemption, or cancellation of redemption, of any Note.
Section 3.05 Payment of Notes Called for Redemption.
If notice of redemption has been given (and not rescinded) as above
provided, the Notes specified in such notice shall become due and payable on the
date and at the place stated in such notice at the applicable Redemption Price
and on and after said date (unless the Company shall Default in the payment of
such Notes at the Redemption Price) Original Issue Discount on the Notes so
called for redemption shall cease to accrue and such Notes shall cease from and
after the date fixed for redemption to be entitled to any benefit under this
Indenture, and the Holders thereof shall have no right in respect of such Notes
except the right to receive the Redemption Price thereof. On presentation and
surrender of such Notes at a place of payment specified in said notice, said
Notes or the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price.
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If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the Redemption Price shall, until paid or duly provided
for, bear interest from the date fixed for redemption at the rate of 12 percent
(12%) per annum.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company covenants and agrees for the benefit of the Holders that it
shall duly and punctually pay the amounts owed on the Notes on the dates and in
the manner provided in this Indenture and in the Notes. Principal Amount at
Maturity or Redemption Price shall be considered paid on the date due if such
date the Paying Agent or Trustee holds in accordance with this Indenture
sufficient funds to pay principal and accrued interest then due and such
payments are not prohibited on that date pursuant to this Indenture.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain in the City of Atlanta, State of Georgia, an
office or agency where Notes may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. At
the written request of the Company, said office or agency may be the office of
an agent appointed by the Trustee for such purpose. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency not designated or appointed by the Trustee.
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 name and
address of Trustee.
The Company may also 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 designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the City of
Atlanta, State of Georgia, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. The Company hereby
initially designates 000 Xxxxxx 00 Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000,
as one such office or agency of the Company.
Section 4.03 Liquidation of the Company.
Upon the liquidation or dissolution of the Company, after the payment
of all Senior Debt but prior to making any distribution of assets or properties
to the holders of capital stock of the Company or to the holders of any
Subordinated Indebtedness of the Company, the Company shall redeem all of the
Notes then Outstanding at a price equal to the amount at which the Company could
then redeem the Notes under Section 3.01 hereof.
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Section 4.04 Limitation on Repayment of Subordinated Indebtedness.
The Company shall not, directly or indirectly, pay, purchase, redeem,
defease (including, but not limited to, in-substance or legal defeasance) or
otherwise acquire or retire for value prior to the stated maturity of, or prior
to any scheduled mandatory redemption or sinking fund payment with respect to
(collectively, to "repay" or a "repayment"), the principal of any Indebtedness
of the Company which by its terms is subordinated in right of payment to the
Notes; provided, however, that any such repayment shall not be prohibited if
such repayment is financed with the proceeds of the sale of common stock,
Preferred Stock, Subordinated Indebtedness permitted hereunder or any other
security which by its terms or by operation of law is junior or subordinate in
right of payment or upon liquidation to the Notes.
Section 4.05 Insurance.
The Company shall maintain with financially sound and reputable
insurers, appropriate insurance (including prudent levels of self-insurance, as
determined by the Board of Directors of the Company) on the Company's Properties
and businesses against liabilities, casualties, risks and contingencies of the
type, as determined from time to time in good faith by the Board of Directors,
provided, however, that any such insurers shall be qualified to do business in
the jurisdiction where the insured property is located.
Section 4.06 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim, the benefit or advantage of, any stay or extension law or any usury law
or other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, or premium, if any, and interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power granted to the Trustee herein, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 4.07 Waiver of Certain Covenants.
Subject to Section 4.01, compliance by the Company with any of the
covenants contained herein may be waived before the time for such compliance by
the Holders of at least a majority in aggregate principal amount of the Notes
then Outstanding, but in no event shall such waiver extend to or affect such
covenant or condition except to the extent so expressly waived and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
Section 4.08 Corporate Existence.
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Except as otherwise provided in Article 5, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate existence of each Subsidiary
engaged in substantial business activity each in accordance with the respective
organizational documents of the Company and each such Subsidiary and the rights
(charter and statutory), licenses, permits, approvals and governmental
franchises of the Company and each such Subsidiary necessary to the conduct of
its respective business; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or to preserve the
corporate existence of any such Subsidiary if the Board of Directors shall
determine that the preservation thereof is no longer in the interest of the
Company and that termination of such corporate existence is not disadvantageous
to the Holders in any material respect.
Section 4.09 Payment of Taxes and other Claims.
The Company shall, and shall cause each Subsidiary to, pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (a)
all taxes, assessments and governmental charges levied or imposed upon the
Company and each Subsidiary or upon the income, profits or property of the
Company and each Subsidiary, and (b) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon the property of the
Company or a Subsidiary; provided, however, that the Company or a Subsidiary, as
the case may be, shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim (i) the amount,
applicability or validity of which is being contested in good faith, or (ii) if
the Board of Directors shall determine that such non-payment and non-discharge
is in the interest of the Company and not prejudicial in any material respect to
the Holders.
Nothing contained herein or in the Notes shall be deemed to impose on
the Trustee or on the Company any obligation to pay on behalf of the Holder of
any Notes any tax, assessment or governmental charge required by any present or
future law of the U.S. or of any state, county, municipality or other taxing
authority thereof to be paid on behalf of, or withheld from the amount payable
to, the Holder of any Notes; rather any tax, assessment or governmental charge
shall be withheld from the amounts provided for herein.
Section 4.10 Notices.
The Company shall notify the Trustee in writing if an Event of Default
on the Notes shall occur and be continuing giving any Person the right to cause
the Notes to become due prior to their stated maturity or exercise other
remedies thirty (30) Business Days after an Officer learns of the occurrence
thereof, and, if applicable, the steps being taken by the Person(s) affected
which notice shall describe such event.
Section 4.11 Reports and Compliance Certificates.
The Company shall furnish to the Trustee:
(a) Within one hundred twenty (120) days after each fiscal
year of the Company, (i) a copy of an annual audited report of the
Company prepared in conformity with generally
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accepted accounting principles applied on a consistent basis duly
certified by a firm of independent certified public accountants of
recognized national or regional standing and who are members of the
AICPA SEC Practice Section selected by the Company and reasonably
acceptable to the Trustee (the "Independent Accountant") and (ii) a
copy of an annual unaudited report of the Company prepared in the same
manner as the audited report referred to in (i) of this subsection (a),
signed by a proper accounting officer of the Company.
(b) Within forty-five (45) days after each quarter of each
fiscal year of the Company, except the final quarter of such fiscal
year, a copy of an unaudited financial statement of the Company
prepared in the same manner, as customarily applied to interim
financial statements, signed by a proper accounting officer of the
Company and consisting of at least a balance sheet as at the close of
such quarter and statements of operations and cash flow for such
quarter and for the period from the beginning of such fiscal year to
the close of such quarter.
(c) Contemporaneously with the furnishing of a copy of each
annual report and of each quarterly statement referred to in (a) and
(b) above, an Officer's Certificate signed by the principal executive
officer, principal accounting officer or principal financial officer of
the Company dated the date of such annual report or such quarterly
statement to the effect that no Event of Default has occurred and is
continuing, or, if there is any such Event of Default, describing it
and the steps, if any, being taken to cure it. Upon receipt of any such
certificates, the Trustee may, but shall not be obligated to, request
any additional information from the Company which it in good faith
believes is necessary to enable it to determine the accuracy of the
information contained in such certificates.
(d) Copies of each filing and report made by the Company with
or to any securities exchange or the SEC, and of each communication
from the Company to shareholders generally, within five (5) days after
the Company is required to file the same. The foregoing shall include
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 SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Sections 13 or 15(d) of the
Securities Exchange Act of 1934, as amended. The Company shall also
comply with the other provisions of TIA ss. 314(a).
(e) Upon request, the Company shall furnish to the Trustee an
Officer's Certificate setting forth (i) the amount of the original
issue discount on the Notes expressed as in U.S. dollars for each
$1,000 of Principal Amount at Maturity of such Notes and (ii) a table
of the amounts that would be due and payable upon a declaration of
acceleration of the maturity of the Notes for each day from the date of
original issuance of the Notes to the stated maturity of the Notes.
So long as any of the Notes remain Outstanding, the Company shall cause
its annual report to stockholders and any quarterly or other financial reports
furnished by it to stockholders to be mailed to the Holders of such Outstanding
Notes at their addresses appearing in the Register.
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Section 4.12 Books, Records, Access; Confidentiality.
(a) The Company shall, and shall cause each of its
Subsidiaries to (i) maintain books and records of account in which full
and correct entries sufficient to allow the preparation of financial
statements in conformity with generally accepted accounting principles,
shall be made of all dealings and transactions in relation to its
respective business and activities and (ii) permit authorized
representatives of the Trustee to visit and inspect the Properties of
the Company or its Subsidiaries, and any or all books, records and
documents in the possession of the Company, upon reasonable notice and
at such reasonable times during normal business hours and as often as
may be reasonably requested.
(b) The Trustee and its respective authorized representatives
referred to in clause (a) above agree not to use any information
obtained pursuant to this Section 4.12 for any purpose other than as
required in order to discharge its respective duties hereunder except
as otherwise required for such purpose to keep confidential and not to
disclose any such information to any person except that (i) the
recipient of the information may disclose any information which becomes
publicly available other than as a result of disclosure by such
recipient, (ii) the recipient of the information may disclose any
information which its counsel reasonably concludes is necessary to be
disclosed by law, pursuant to any court or administrative order or
ruling or in any pending legal or administrative proceeding or
investigation after notice to the Company adequate, subject to
applicable laws, to allow the Company to obtain a protective order or
other appropriate remedy, provided that the recipient of the
information will (if not otherwise required in order to discharge its
duties as aforesaid) cooperate with the Company's efforts to obtain a
protective order or other reliable assurance that confidential
treatment will be accorded any such information required to be so
disclosed, (iii) the recipient of the information may disclose any
information necessary to be disclosed pursuant to any provision of the
TIA, (iv) the recipient of the information may disclose any information
as may be necessary for the purpose of enforcing the rights of the
Trustee hereunder, and (v) nothing contained herein shall limit or
impair the right or obligation of the recipient of the information to
disclose such information to the extent required by law or by
appropriate regulatory authorities having or acquiring jurisdiction
over the affairs of such recipient.
Section 4.13 Compliance with Laws, etc.
The Company shall, and shall cause each of its Subsidiaries to, comply
with the requirements of applicable laws, noncompliance with which, individually
or in the aggregate, would reasonably be expected to have a material adverse
effect on the business, operations or financial condition of the Company and its
Subsidiaries taken as a whole.
Section 4.14 Restricted Payment.
The Company will not make any Restricted Payments (defined to be
dividends and distributions on Common Stock other than dividends to the extent
payable in such Common Stock or warrants or options to purchase Common Stock)
unless, after giving effect to the Restricted
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Payment, the aggregate of all Restricted Payments after December 31, 1998 will
not exceed the sum of (a) the net income of the Company after March 31, 1999
plus (b) $1,000,000 plus (c) the net proceeds from the issuance or sale after
March 31, 1999 of any shares of its Common Stock, including shares of Common
Stock issued on conversion of indebtedness, the exercise of warrants or options
or on conversion of any class of the capital stock of the Company.
Section 4.15 Restricted Payment.
The Company may incur additional Indebtedness, including Senior
Indebtedness, except the Company shall not sell any Indebtedness that is both
(i) junior in priority and right of payment to Senior Indebtedness and (ii)
senior in priority and right of payment to the Note. Among other kinds of
Indebtedness, the Company may issue from time to time additional Indebtedness
that is junior in priority and right of payment to Senior Indebtedness and pari
passu to the Notes.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01 Covenant Not to Consolidate, Merge, Convey or Transfer
Except Under Certain Conditions.
The Company shall not consolidate with, or merge with or into, or
convey or transfer all or substantially all of its properties and assets (which
shall be in excess of 80% of the Company's properties and assets, as determined
at the time of such transfer without regard to any prior transfer or series of
transfers made on unrelated transactions) to any other Person in one transaction
or a series of related transactions unless:
(a) The Company shall be the continuing Person or the Person
(if other than the Company) formed by such consolidation or into which
the Company is merged or to which the Properties of the Company as, or
substantially as, an entirety are transferred (the "surviving Person"):
(i) shall be a corporation organized and existing under the laws of the
United States of America or any state thereof or the District of
Columbia; and (ii) shall expressly assume, by an indenture and other
agreements supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of and interest on all the Notes and the observance and
performance of every covenant, condition and obligation of this
Indenture and, the Notes on the part of the Company to be observed or
performed;
(b) Immediately before and immediately after giving effect to
such transaction and treating any Indebtedness which becomes an
obligation of the Company or the surviving Person as a result of such
transaction as having been incurred by the Company at the time of such
transaction, no Event of Default shall have occurred and be continuing
hereunder;
(c) The consolidated net worth (meaning consolidated
stockholders' equity in a Person and its Subsidiaries as determined in
accordance with generally accepted accounting principles) of the
Company or surviving Person immediately after giving effect to, but
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excluding goodwill resulting from, such transaction is not less than
50% of the consolidated net worth of the Company immediately before
such transaction; and
(d) The Company has delivered to the Trustee an Officer's
Certificate stating that such merger, consolidation, conveyance or
transfer of assets and such supplemental indenture comply with this
Article and that there has been compliance in all material respects
with the conditions precedent herein provided for or relating to such
transaction.
Section 5.02 Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 5.01, the surviving entity formed by such consolidation or into
which the Company is merged or the surviving entity to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, and be bound by and obligated to pay the obligations
of, the Company under this Indenture and the Notes with the same effect as if
such successor had been named as the Company herein and therein; and in the
event of any such conveyance (other than a conveyance by way of lease) or
transfer, the Company shall be discharged from all obligations and covenants
under the Indenture and the Notes and may be dissolved and liquidated.
Such surviving entity may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession any or all
of the Notes issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such surviving
entity, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Notes which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any Notes
which such surviving entity thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All of the Notes so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Notes had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, transfer or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs if:
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(a) the Company defaults in the payment of the Principal
Amount at Maturity of any Notes when the same becomes due and payable
at maturity or otherwise and the default continues for thirty (30)
days, subject to Article 10 hereof;
(b) the Company shall be in default of compliance with Section
5.01 hereof and such default shall continue unremedied for a period of
thirty (30) days after receipt of notice thereof from the Trustee;
(c) (i) the Company fails in any material respect to comply
with any of its other agreements contained in the Notes or this
Indenture and such non-compliance continues unremedied for a period of
forty-five (45) days after written notice has been given to the Company
by the Trustee, or (ii) any representation or warranty made by the
Company in this Indenture or in any certificate of the Company
delivered hereunder or under any such document shall prove to have been
untrue in any material respect when made, and in any such case such
default continues unremedied for a period of forty five (45) days after
receipt of notice thereof from the Trustee;
(d) the Company or any Significant Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law (as hereinafter defined):
(i) commences with respect to it a voluntary case or
proceeding,
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian (as
hereinafter defined) of it or for all or substantially all of
its property, or
(iv) makes a general assignment for the benefit of
its creditors;
(e) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary, in an involuntary case or proceeding,
(ii) appoints a Custodian of the Company or any
Significant Subsidiary, for all or substantially all of its
properties, or
(iii) orders the liquidation of the Company or any
Significant Subsidiary,
and in each case the order and decree remains unstayed and in effect
for sixty (60) consecutive days.
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The term "Bankruptcy Law" means Title 11, U.S. Code, as amended, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
All notices of Default by the Trustee or by the Holders must specify
the Default, demand that it be remedied and state that the notice is a "Notice
of Default." When a Default is remedied or cured, it ceases.
Section 6.02 Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01 (d) or (e)) occurs, and is continuing, the Trustee may, by notice
to the Company, or the Holders of at least a majority in principal amount of the
Notes Outstanding may, by notice to the Company and the Trustee, and the Trustee
shall, upon the request of such Holders, declare the Notes Outstanding (if not
then due and payable) to be due and payable in the amount at which the Company
could then redeem the Notes under Section 3.01 hereof (assuming there had been
no Event of Default). If an Event of Default specified in Section 6.01 (d) or
(e) occurs, the Notes Outstanding shall ipso facto become and be immediately due
and payable in the amount at which the Company could then redeem the Notes under
Section 3.01 hereof (assuming there had been no Event of Default), without any
declaration or other act on the part of the Trustee or any Noteholder. Upon such
payment, all of the Company's obligations under the Notes and this Indenture,
other than obligations under Sections 7.07 and 8.04, shall terminate. The
Holders of a majority in principal amount of the Notes then outstanding by
notice to the Trustee and the Company may consent to the waiver of any past
default and rescind an acceleration and its consequences. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect payment on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
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 or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Past Defaults.
Subject to Sections 6.07, 9.02 and 9.06, the Holders of a majority in
principal amount of the Notes Outstanding by notice to the Trustee may authorize
the Trustee to waive an existing Default or Event of Default and its
consequences, except a Default (i) in the payment on any Note as specified in
clause (a) of Section 6.01 or (ii) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Note affected. When a
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Default or Event of Default is waived, it is cured and ceases, and the Company,
the Holders and the Trustee shall be restored to their former positions and
rights hereunder respectively; but no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
The Holders of a majority in principal amount of the Notes Outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it; provided that the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction. The Trustee may refuse to
follow any direction hereunder or authorization under Section 6.04 that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Noteholder, or that the Trustee determines
may subject the Trustee to personal liability, it being understood that the
Trustee does not have an affirmative duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Noteholder. The Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request of any of the holders of the Notes, unless they shall
have offered to the Trustee security and indemnity satisfactory to it. However,
the Trustee shall have no liability for any actions or omissions to act which
are in accordance with any such direction or authorization.
Section 6.06 Limitation on Suits.
Except as provided in Section 6.05 and Section 6.07, a Noteholder may
not pursue any remedy with respect to this Indenture or the Notes.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over such other Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment on the Note, on or after the respective due
dates expressed in the 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 the Holder.
It is hereby expressly understood, intended and agreed that any and all
actions which an individual Holder of the Notes may take to enforce the
provisions of this Indenture and/or collect amounts due hereunder or under the
Notes, except to the extent that such action is determined to be on behalf of
all Holders of the Notes, shall be in addition to and shall not in any way
change, adversely affect or impair the rights and remedies of the Trustee or any
other Holder of the Notes thereunder or under this Indenture and the Note
Documents.
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Section 6.08 Collection Suit by Trustee.
If an Event of Default in payment specified in clause (a) of Section
6.01 occurs and is continuing or payment of the Issue Price and accrued Original
Issue Discount has been validly accelerated under Section 6.02, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of Issue Price
and accrued Original Issue Discount remaining unpaid, together with interest on
overdue amounts to the extent that payment of such interest is permitted by law,
at the rate per annum provided for by the Notes, and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Noteholders allowed
in any judicial proceedings relative to the Company (or any other obligor upon
the Notes), its creditors or its property and shall be entitled and empowered to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Noteholder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Noteholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07, and unless prohibited by law or applicable regulations to vote on
behalf of the Holders of Notes for the election of a trustee in bankruptcy or
other person performing similar functions. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Noteholder in any
such proceeding except, as aforesaid, for the election of a trustee in
bankruptcy or person performing similar functions.
Section 6.10 Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article shall be
applied in the following order at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys to Noteholders, upon presentation of the
Notes and stamping (or otherwise noting) thereon the payment, or issuing Notes
in reduced principal amounts in exchange for the presented Notes if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys (including amounts due and unpaid
under Section 7.07), and of all costs, fees, expenses and liabilities
incurred, and all advances made, by any and all of the foregoing
(including
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amounts due and unpaid under Section 7.07), except as a result of gross
negligence or willful misconduct;
SECOND: In case the Notes shall have become and shall be then
due and payable, to the payment of the amount of Issue Price and
accrued Original Issue Discount then owing and unpaid upon all the
Notes, with interest upon the overdue amount (to the extent that such
interest has been collected by the Trustee) at the same rate as the
rate of interest specified in the Notes; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon
the Notes, then to the payment of such Issue Price and accrued Original
Issue Discount, without preference or priority of Issue Price over
accrued Original Issue Discount, or of accrued Original Issue Discount
over Issue Price, of any Note over any other Note, ratably to the
aggregate of such Issue Price and accrued Original Issue Discount;
THIRD: To the payment of the remainder, if any, after payment
in full of the entire Issue Price and accrued Original Issue Discount
of the Notes and other amounts due upon or in respect of the Notes to
the Company or any other Person lawfully entitled thereto.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Noteholders pursuant to this Section
6.10.
Section 6.11 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court in its
discretion may require in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, 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; provided that the provisions of
this Section shall not apply to any suit instituted by the Trustee, or any suit
instituted by any indenture security holder, or group of indenture security
holders, holding in the aggregate more than 10 percent (10%) in principal amount
of the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of payment of the principal of or interest on the Notes, on or after
the respective due dates expressed herein.
Section 6.12 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Company, the Trustee and the Noteholders shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the Noteholders
shall continue as though no such proceedings had been taken.
Section 6.13 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default.
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No right or remedy herein conferred upon or reserved to the Trustee or
to the Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of the
Notes to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to the other applicable provisions of this
Indenture, every power and remedy given by this Indenture or by law to the
Trustee or to the Noteholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Noteholders.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon an Officer's Certificates, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.01 or of Section 7.02.
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(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(iii) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05.
(d) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity or security satisfactory to
it against any loss, liability or expense.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b),(c) and (d) of this
Section 7.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in a separate writing
with the Company.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed
by it to be genuine and to have been signed or presented by the proper
person. The Trustee shall not be bound to 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 which shall
conform to Section 11.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its attorneys and agents and the Trustee shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers. The Trustee shall have the
right at any time to seek instruction concerning the administration of
this Indenture or the trust created hereby from any court of competent
jurisdiction.
(e) The Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The Trustee shall not be required to risk or expend its
own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder.
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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 and collect obligations
owed to it by the Company or Affiliates of the Company with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11 of this Indenture.
Section 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement in the Notes or in this Indenture other than its certificate of
authentication.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is actually known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within ninety (90) days after the occurrence thereof except as otherwise
permitted by the TIA. Except in the case of a Default in payment on any Note,
the Trustee may withhold the notice if and so long as the Trustee in good faith
determines that withholding the notice is in the interest of the Noteholders.
Section 7.06 Reports and Notices by Trustee to Holders.
If circumstances require any report to Holders under TIA ss. 313(a), it
shall be mailed to Note Holders within sixty (60) days after each August 15
(beginning with the August 15 following the date of this Indenture) as of which
such circumstances exist. The Trustee also shall comply with the remaining
provisions of TIA ss. 313.
The Company shall notify the Trustee if the Notes become listed on any
stock exchange or other recognized trading market.
If and to the extent required by the TIA, the Trustee shall, upon the
written request of any Holder of Notes, but subject to any applicable laws and
contractual limitations, provide to such Holder copies of any reports,
certificates, opinions or other materials of any kind or nature required to be
delivered to the Trustee under this Indenture, or otherwise delivered by or on
behalf of the Company to the Trustee.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation, as agreed upon from time to time. 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 upon request for all reasonable
disbursements, expenses and advances incurred or made by it in any such
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capacity. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel and all agents and other
persons not regularly in its employ.
The Company shall indemnify the Trustee (in its capacities as Trustee
hereunder), and each predecessor Trustee and their respective officers,
employees and agents for, and hold each of them harmless against, any loss,
liability or expense of whatsoever kind incurred by each of them arising out of
or in connection with the administration of this trust and its duties hereunder.
In connection with any defense of such a claim, the Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or any predecessor Trustee through the
gross negligence or willful misconduct of such Trustee or each such predecessor
Trustee.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien (legal and equitable) prior to the Notes on all money
or property held or collected by the Trustee, in its capacity as Trustee, or
otherwise distributable to Noteholders except money, Notes or property held in
trust to pay particular Notes, and the Notes are hereby subordinated to such
prior claim.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional Indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and any termination under any bankruptcy law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (d) or (e) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Section shall become effective until the
acceptance of appointment by the successor Trustee in accordance with this
Section 7.08.
The Trustee (in its capacities as Trustee hereunder) may resign by so
notifying the Company in writing. The Holders of a majority in principal amount
of the Notes Outstanding may remove the Trustee by so notifying the Trustee in
writing and may appoint a successor Trustee with the Company's consent. The
Company may remove the Trustee (in its capacities as Trustee hereunder) if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
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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. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes Outstanding may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
If a successor Trustee does not take office within sixty (60) days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least ten percent (10%) in principal amount of the
Notes Outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee which shall retain its claim pursuant to Section
7.07.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent, published
annual report of condition. The Trustee shall comply with TIA ss. 310(b);
provided, however, that there shall be excluded from the operation of TIA ss.
310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
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Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
Section 7.12 Investment of Funds by the Trustee.
(a) The Trustee, upon the written request of the Company,
shall invest in U.S. Government Obligations all or a portion of the
cash deposited with it by the Company. The Trustee will apply the
proceeds deposited with it by the Company pursuant to any applicable
offer to repurchase to the purchase of Notes tendered pursuant to the
Company's offer to repurchase and, after purchasing the Notes tendered,
will, so long as there exists no Event of Default, promptly return to
the Company any excess money or U.S. Government Obligations the Trustee
holds as a result of the Company's deposit. The Trustee shall not be
liable for the diminution in value of any investment made upon written
request of the Company pursuant to this Section 7.12 or Section 8.04.
(b) Except as otherwise provided in Section 7.12(a) or Section
8.04, the Trustee shall have no obligation to invest funds deposited
with it in its capacity as Trustee.
ARTICLE 8.
DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's Obligations.
(a) The Company may terminate its obligations under the Notes
and this Indenture, except those obligations referred to in the second
succeeding paragraph, if all Notes previously authenticated and
delivered (other than destroyed, lost or stolen Notes which have been
replaced or paid or Notes for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.03) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder.
(b) The Company may terminate all its obligations under the
Indenture except those obligations referred to in the immediately
succeeding paragraph if the Company has irrevocably deposited or caused
to be deposited with the Trustee or a Paying Agent, under the terms of
an irrevocable trust agreement in form and substance satisfactory to
the Trustee and any such Paying Agent, as trust funds in trust solely
for the benefit of the Holders for that purpose, cash or U.S.
Government Obligations (or a combination of Cash and U.S. Government
Obligations) maturing as to principal and interest in such amounts and
at such times as are sufficient without consideration of any
reinvestment of such interest, to pay Principal Amount at Maturity in
cash on the Notes Outstanding, provided that the Trustee or such Paying
Agent shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of said
Notes. The Company
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may make an irrevocable deposit pursuant to this Section 8.01 only if
at such time the Company shall have delivered to the Trustee and any
such Paying Agent an Officer's Certificate, stating that all conditions
precedent to the defeasance of the Notes under this Section 8.01 have
been complied with.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.01, 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 7.08,
8.03, and 8.04 shall survive until the Notes are no longer Outstanding.
Thereafter, the Company's obligations in Sections 7.07 and 8.03 shall survive
the satisfaction and discharge of this Indenture and the other Note Documents.
Further, no Event of Default with respect to the Notes shall have occurred and
be continuing on the date of such deposit in the preceding paragraph and the
defeasance shall not result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement to which the Company is a
party or which it is bound.
After any such irrevocable deposit covering all Notes Outstanding and
payment of all obligations of the Company accrued under Section 7.07, the
Trustee upon request shall acknowledge in writing the discharge of the Company's
obligations under the Notes and this Indenture except for those surviving
obligations specified above.
Section 8.02 Application of Trust Money.
The Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.01, and shall
apply the deposited money and the money from U.S. Government Obligations in
accordance with this Indenture to the payment of the Notes. The obligations of
the Trustee and Paying Agent under this Section 8.02 shall survive,
notwithstanding any termination or discharge of the Company's obligations
pursuant to Section 8.01, until all Notes are paid in full.
Section 8.03 Repayment to Company.
Subject to Section 8.01, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money held by them only in
their capacities as Trustee or Paying Agent, respectively at any time. The
Trustee and the Paying Agent shall pay to the Company any money held by them for
the payment of Notes that remains unclaimed for two (2) years; provided,
however, that the Trustee or such Paying Agent before making any payment shall
at the expense of the Company cause to be published once in a newspaper of
general circulation in the Atlanta, Georgia or mail to each Holder entitled to
such money, notice that such money remains unclaimed and that, after a date
specified therein which shall be at least thirty (30) days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Noteholders entitled to
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
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Section 8.04 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 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 no deposit had occurred pursuant to Section 8.01 until such
time as the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations and the proceeds of the investment thereof in accordance
with Section 8.01. In such event, the Trustee will invest all such money or the
proceeds from U.S. Government Obligations at the Company's request in other U.S.
Government Obligations and, upon written notice from the Company, so long as no
Event of Default, return to the Company any money or U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.01. If the Company has made any
payment of interest on or principal of 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 U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Notes without notice to or consent of any Noteholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article 5;
(c) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(d) to comply with any requirements of the SEC in connection
with the qualification of this Indenture under the TIA;
(e) to make any change required by a final order of the
Bankruptcy Court after notice and hearing; or
(f) to make any other change that does not materially
adversely affect the rights of any Noteholder.
Section 9.02 With Consent of Holders.
Subject to Section 6.07, the Company (by resolution of its Board of
Directors if required) and the Trustee may amend or supplement this Indenture or
the Notes without notice to any Noteholder but with the written consent of the
Holders of at least a majority in principal amount of the Notes Outstanding.
Subject to Sections 6.04, 6.05 and 6.07, the Holders of a majority in principal
amount
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of the Notes Outstanding may authorize the Trustee to, and the Trustee, subject
to Section 9.06, shall waive compliance by the Company with any provision of
this Indenture or the Notes without notice to any Noteholder. However, without
the consent of each Noteholder affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may not:
(a) reduce the amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the rate of accrual or change the time for payment
of Original Issue Discount on any Note;
(c) reduce the Principal Amount at Maturity or Issue Price of,
or change the fixed maturity of, any Note;
(d) waive a default in the payment of any Note; or
(e) make any other changes in Sections 6.04, 6.07 or the third
sentence of this Section 9.02.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby the
amendment, supplement or waiver. Any failure of the Company to mail such notice,
or any defect therein, shall not, however in any way impair or affect the
validity of any such amendment, supplement or waiver.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
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 or subsequent Holder may revoke the consent as to his Note or
portion of a Note. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least thirty (30) days prior
to the first date of solicitation of such consent, or if later,
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the date of the most recent list of the Holders of the Notes furnished to the
Trustee. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons (or their duly designated
proxies), shall be entitled to consent to such amendment, supplement or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No such consent shall be valid or
effective for more than ninety (90) days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder, unless it makes a change described in any of clauses (a)
through (e) of Section 9.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Note who has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note; provided, however, except as aforesaid any such action
taken by the Holder of any Note relating to any impairment of the right to
receive payment on the Note when due and payable shall be conclusive and binding
upon such Holder and upon all future Holders of such Note and of any Notes
issues in exchange or substitution therefor, only if a notation with regard
thereto is made upon such Note.
Section 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Officer's Certificate and an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to this
Article 9 has been duly authorized by the Company and is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 9.07 Effect of Supplement and/or Amendment to Indenture.
Upon the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Notes shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
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ARTICLE 10.
SUBORDINATION
Section 10.01 Notes Subordinated to Senior Indebtedness.
The Company and each Holder of a Note, by his acceptance thereof, agree
that (a) the payment of the Issue Price, accrued Original Issue Discount,
Principal Amount at Maturity and interest thereon with respect to each and all
the Notes and (b) any other payment in respect of the Notes, including on
account of the acquisition or redemption of Notes by the Company, is
subordinated, to the extent and in the manner provided in this Article 10, to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter created, incurred,
assumed or guaranteed, and that these subordination provisions are for the
benefit of the holders of Senior Indebtedness.
This Article 10 shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are made obligees hereunder and any one or
more of them may enforce such provisions.
Section 10.02 No Payment on Notes in Certain Circumstances.
(a) No payment shall be made by the Company on account of the
Issue Price, accrued Original Issue Discount, Principal Amount at
Maturity or interest thereon or to acquire any of such Notes for cash
or property (other than for Junior Securities or equity securities of
the Company), or on account of any redemption provisions of such Notes,
in the event of default on any Senior Indebtedness of the Company (as
defined in the instrument(s) creating such Senior Indebtedness), unless
and until such default has been cured or waived or otherwise has ceased
to exist.
(b) In furtherance of the provisions of Section 10.01, in the
event that, notwithstanding the foregoing provisions of this Section
10.02, any payment or distribution of assets of the Company (other than
Junior Securities and equity securities of the Company) shall be
received by the Trustee or the Holders of Notes of any series at a time
when such payment or distribution was prohibited by the provisions of
this Section 10.02, then, unless such payment or distribution is no
longer prohibited by this Section 10.02, such payment or distribution
(subject to the provisions of Section 10.06 shall be received and held
in trust by the Trustee or such Holder or Paying Agent for the benefit
of the holders of Senior Indebtedness of the Company, and shall be paid
or delivered by the Trustee or such Holders or such Paying Agent, as
the case may be, to the holders of Senior Indebtedness of the Company
remaining unpaid or unprovided for or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness
of the Company may have been issued, ratably, accordingly to the
aggregate amounts remaining unpaid on account of such Senior
Indebtedness of the Company held or represented by each, for
application to the payment of all Senior
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Indebtedness in full after giving effect to all concurrent payments and
distributions to or for the holders of such Senior Indebtedness.
Section 10.03 Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company or upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors:
(a) the holders of all Senior Indebtedness of the Company
shall first be entitled to receive payments in full before the Holders
of Notes are entitled to receive any payment on account of the Issue
Price, accrued Original Issue Discount, Principal Amount at Maturity,
the principal of, premium (if any) or interest on or any of the
foregoing with respect to such Notes (other than Junior Securities and
equity securities of the Company); and
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other
than Junior Securities and equity securities of the Company), to which
the Holders of Notes or the Trustee on behalf of such Holders would be
entitled, except for the provisions of this Article 10, shall be paid
by the liquidating trustee or agent or other Person making such a
payment or distribution directly to the holders of such Senior
Indebtedness or their representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full of all such Senior
Indebtedness remaining unpaid after giving effect to all concurrent
payments and distributions to the holders of such Senior Indebtedness.
Section 10.04 Obligations of the Company Unconditional.
Nothing contained in this Article 10 or elsewhere in this Indenture or
in the Notes is intended to or shall impair, as between the Company and the
Holders of the Notes, the obligation of the Company, which is absolute and
unconditional, to pay to such Holders in accordance with the terms of the Notes,
or is intended to or shall affect the relative rights of such Holders and
creditors of the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article 10, of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Notwithstanding anything
to the contrary in this Article 10 or elsewhere in this Indenture or in the
Notes, upon any distribution of assets of the Company referred to in this
Article 10, the Trustee, subject to the provisions of Sections 7.01 and 7.02,
and the Holders of the Notes shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such dissolution, winding
up, liquidation or reorganization proceedings are pending, or a certificate of
the liquidating trustee or agent or other Person making any distribution to the
Trustee or to such Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of
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the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10 so long as such court has been appraised of the provisions of, or the order,
decree or certificate makes reference to, the provisions of this Article 10.
Section 10.05 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until a responsible officer of the Trustee or any Paying
Agent shall have received, no later than two Business Days prior to such
payment, written notice thereof from the Company or from one or more holders of
Senior Indebtedness or from any representative therefor and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, shall be entitled in all respects conclusively to assume
that no such fact exists.
Section 10.06 Application by Trustee of Amounts Deposited With It.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Section 2.05 shall be for the sole benefit of Holders of the
Notes, and shall not be subject to the subordination provisions of this Article
10. Otherwise, any deposit of assets with the Trustee or the Paying Agent
(whether or not in trust) for the payment with respect to any Notes shall be
subject to the provisions of Sections 10.01, 10.02 and 10.03; provided that if
prior to two Business Days preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including
without limitation, the payment with respect to any Note), the Trustee or such
Paying Agent shall not have received with respect to such assets the written
notice provided for in Section 10.05, then the Trustee or such Paying Agent
shall have full power and authority to receive such assets and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary that may be received by it on or after such date; and
provided further that nothing contained in this Article 10 shall prevent the
Company from making, or the Trustee from receiving or applying, any payment in
connection with the redemption of Notes if the first publication of notice of
such redemption (whether by mail or otherwise in accordance with this Indenture)
has been made, and the Trustee has received such payment from the Company, prior
to the occurrence of any of the contingencies specified in Section 10.02 or
10.03.
Section 10.07 Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination provisions contained in this Article 10 shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with. The holders of Senior Indebtedness may extend, renew,
modify or amend the terms of the Senior Indebtedness or any security therefor
and release, sell or exchange such security and otherwise deal freely with
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the Company, all without affecting the liabilities and obligations of the
parties to this Indenture or the Holders of the Notes.
Section 10.08 Trustee to Effectuate Subordination of Securities.
Each Holder of a Note by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article 10 and to protect the rights of the Holders of the Notes pursuant
to this Indenture, and appoints the Trustee his attorney-in-fact for such
purpose, including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors of the Company),
the filing of a claim for the unpaid balance of his Notes in the form required
in said proceedings and cause said claim to the approved.
Section 10.09 Right of Trustee to Hold Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all of the
rights set forth in this Article 10 in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
Section 10.10 Article 10 Not to Prevent Events of Default.
The failure to make a payment on account of the Notes by reason of any
provision of this Article 10 shall not be construed as preventing the occurrence
of a Default or an Event of Default or in any way prevent the Holders of the
Notes from exercising any right hereunder other than the right to receive
payment on the Notes.
Section 10.11 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or gross negligence) if it shall in good
faith mistakenly pay over or distribute to the Holders of the Notes or the
Company or any other Person, cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article 10 or
otherwise. Nothing in this Section 10.11 shall affect the obligation of any
other such Person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
Section 10.12 Article Applicable to 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 such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were
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named in this Article in addition to or in place of the Trustee; provided,
however, that this Section 10.12 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent.
ARTICLE 11.
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls.
If and to the extent that any provision of this Indenture limits,
qualifies, or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the TIA, such imposed duties shall control.
Section 11.02 Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or when mailed by first-class mail addressed as follows:
if to the Company:
XXXX International Corp.
000 Xxxxxx 00 Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Fax: (000) 000-0000
with copies to:
Xxxxx, Xxxxxxxx & Xxxxxxx, XXX
Xxxxx 0000, Xxxxxxxxx XX
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
if to the Trustee:
U.S. Bank Trust, National Association
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Division
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
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Xxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Att: Xxxxxxx X. Xxxxxx
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him or her by first-class mail, postage prepaid, at his or her address as it
appears on the Register and shall be sufficiently given to him or her if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. Except
for a notice to the Trustee or to the Company, which is deemed given only when
received, if a notice or communication is mailed in the maker provided above, it
is duly given, whether or not the addressee receives it.
Section 11.03 Communications By Holders With Other Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture. The Company, the
Trustee, the Registrar and any other person shall have the protection of TIA
ss.312(c).
Section 11.04 Certificate 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 an
Officer's Certificate and an Opinion of Counsel each stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, provided,
that in the case of any such application or Request as to which the furnishing
of an Officer's Certificate or Opinion of Counsel is specifically required by
any provision of this Indenture or the Note Document relating to such particular
application or Request, no additional certificate or opinion, as the case may
be, need be furnished.
Section 11.05 Statements Required In Certificate or Opinion.
Each certificate or opinion provided for and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include: (a) a statement that the Person signing such
certificate or opinion has read such condition or covenant and the definitions
herein or therein relating thereto; (b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (c) a statement that, in the
opinion of such Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and (d) a statement as to whether
or not in the opinion of such Person, such condition or covenant has been
complied with.
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Any certificate or opinion of an Officer or an engineer, insurance
broker, accountant or other expert may be based, insofar as it relates to legal
matters, upon a certificate or opinion of or upon representations by counsel,
unless such officer, engineer, insurance broker, accountant or other expert
knows that the certificate or opinion or representations with respect to the
matters upon which his opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should have known that the same were erroneous.
Any certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon the certificate or opinion of or
representations by an officer or officers of the Company stating that the
information with respect to such factual matters is in possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to the matters upon which his opinion may be based
as aforesaid are erroneous and insofar as it relates to legal matters in a
jurisdiction or area of law beyond the expertise of such counsel, such counsel
may rely upon the opinion of counsel qualified in such other jurisdiction or
area of law.
Wherever in this Indenture in connection with any application,
certificate or report to the Trustee it is provided that the Company shall
deliver any document as a condition of the granting of such application or as
evidence of the Company's compliance with any term hereof, it is intended that
the truth and accuracy at the time of the granting of such application or at the
effective date of such certificate or report, as the case may be, of the facts
and opinions stated in such document shall in each such case be a condition
precedent to the right of the Company to have such application granted or to the
sufficiency of such certificate or report. Nevertheless, in the case of any such
application, certificate or report, any document required by any provision of
this Indenture to be delivered to the Trustee as a condition of the granting of
such application or as evidence of such compliance may be received by the
Trustee or collateral agent as conclusive evidence of any statement therein
contained and shall be full warrant, authority and protection to the Trustee or
collateral agent acting in good faith thereon.
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.
Whenever any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements or opinions or other
instruments under this Indenture such person may, but need not, consolidate such
instruments into one.
Section 11.06 Rules By Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
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Section 11.07 Payment Dates.
If a payment date is not a Business Day, payment may be made at the
designated place on the next succeeding day that is a Business Day with the same
effect as if such payment was made on the original payment date.
Section 11.08 Governing Law.
The laws of the State of New York shall govern this Indenture and the
Notes without regard to principles of conflict of laws.
Section 11.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any indenture, loan or debt
agreement of the Company or any of its Subsidiaries which is unrelated to this
Indenture or the Notes. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture or the Note Documents.
Section 11.10 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Noteholder by accepting a Note waives and
releases all such liability.
Section 11.11 Provisions of Indenture for the Sole Benefit of Parties,
Noteholders and Certain holders of Senior Indebtedness.
Nothing in this Indenture or the Notes, expressed or implied, shall
give or be construed to give to any Person, firm or corporation, other than the
parties hereto, their successors, the Holders of the Notes and certain holders
of Senior Indebtedness (who hold Senior Indebtedness that explicitly provides in
the instrument creating the same that such holders may rely on this Indenture),
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Notes.
Section 11.12 Successors.
All agreements of the Company in this Indenture and the Notes shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 11.13 Duplicate Originals and Counterparts.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. This Indenture may be executed, acknowledged and delivered in any
number of counterparts, each of such counterparts constituting an original but
all together only one agreement.
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Section 11.14 Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
Section 11.15 Effect of Headings.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Upon the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the Holders of the Notes shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
U.S. BANK TRUST, NATIONAL ASSOCIATION,
as TRUSTEE
By:
-----------------------------------------
Title:
----------------------------------
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