=============================================================================
VISKASE COMPANIES, INC.
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee
-----------------------
INDENTURE
Dated as of -----------, 2002
-----------------------
$60,000,000
8% Senior Subordinated Secured Notes Due 2008
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CROSS-REFERENCE TABLE *
Trust Indenture Reference
Act Section Section
--------------- ---------
310(a)(l)................................................. 6.10
(a)(2)................................................. 6.10
(a)(3)................................................. N.A.
(a)(4)................................................. N.A.
(a)(5)................................................. 6.10
(b).................................................... 6.08, 6.10
311(a).................................................... 6.11
(b).................................................... 6.11
(c).................................................... N.A.
312(a).................................................... 2.05
(b).................................................... 10.03
(c).................................................... 10.03
313(a).................................................... 6.06
(b)(1)................................................. N.A.
(b)(2)................................................. 6.06
(c).................................................... 6.06, 10.02
(d).................................................... 6.06
314(a).................................................... N.A.
(b).................................................... N.A.
(c)(l)................................................. 10.04
(c)(2)................................................. 10.04
(c)(3)................................................. 10.04
(d).................................................... N.A.
(e).................................................... 10.05
(f).................................................... N.A.
315(a).................................................... 6.01(b)
(b).................................................... 6.05
(c).................................................... 6.01(a)
(d).................................................... 6.01(c)
(e).................................................... 5.11
316(a)(last sentence)..................................... 2.09
(a)(l)(A).............................................. 5.05
(a)(l)(B).............................................. 5.04
(a)(2)................................................. N.A.
(b).................................................... 5.07
(c).................................................... 8.07
317(a)(l)................................................. 5.08
(a)(2)................................................. 5.09
(b).................................................... 2.04
318(a).................................................... 10.01
N.A. means not applicable
----------------------
* This Cross-Reference Table shall not for any purposes
be deemed a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...................... 1
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act......... 10
SECTION 1.03. Rules of Construction..................................... 10
ARTICLE 2 THE SECURITIES................................................. 11
SECTION 2.01. Form and Dating........................................... 11
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount.. 11
SECTION 2.03. Registrar and Paying Agent................................ 12
SECTION 2.04. Paying Agent to Hold Money in Trust....................... 12
SECTION 2.05. Holder Lists.............................................. 13
SECTION 2.06. Transfer and Exchange..................................... 13
SECTION 2.07. Replacement Securities.................................... 14
SECTION 2.08. Outstanding Securities.................................... 14
SECTION 2.09. Treasury Securities....................................... 15
SECTION 2.10. Temporary Securities...................................... 15
SECTION 2.11. Cancellation.............................................. 15
SECTION 2.12. Overdue Interest.......................................... 16
SECTION 2.13. CUSIP Number.............................................. 16
ARTICLE 3 COVENANTS...................................................... 16
SECTION 3.01. Payment of Securities..................................... 16
SECTION 3.02. Maintenance of Office or Agency........................... 16
SECTION 3.03. SEC Reports............................................... 17
SECTION 3.04. Continued Existence and Rights............................ 17
SECTION 3.05. Maintenance of Property; Insurance........................ 17
SECTION 3.06. Taxes and Claims.......................................... 18
SECTION 3.07. Compliance Certificate.................................... 18
ARTICLE 4 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE........... 19
SECTION 4.01. Company May Consolidate, Etc., Only on Certain Terms...... 19
SECTION 4.02. Successor Substituted..................................... 19
ARTICLE 5 DEFAULTS AND REMEDIES.......................................... 20
SECTION 5.01. Events of Default; Notice of Default...................... 20
SECTION 5.02. Acceleration.............................................. 21
SECTION 5.03. Other Remedies............................................ 22
SECTION 5.04. Waiver of Defaults........................................ 22
SECTION 5.05. Control by Majority....................................... 22
SECTION 5.06. Limitation on Suits....................................... 23
SECTION 5.07. Rights of Holders to Receive Payment...................... 23
SECTION 5.08. Collection Suit by Trustee................................ 23
SECTION 5.09. Trustee May File Proofs of Claim.......................... 24
SECTION 5.10. Priorities................................................ 24
SECTION 5.11. Undertaking for Costs..................................... 25
ARTICLE 6 TRUSTEE........................................................ 25
SECTION 6.01. Duties of Trustee......................................... 25
SECTION 6.02. Rights of Trustee......................................... 26
SECTION 6.03. Individual Rights of Trustee.............................. 27
SECTION 6.04. Trustee's Disclaimer...................................... 27
SECTION 6.05. Notice of Defaults........................................ 27
SECTION 6.06. Reports by Trustee to Holders............................. 27
SECTION 6.07. Compensation and Indemnity................................ 28
SECTION 6.08. Replacement of Trustee.................................... 28
SECTION 6.09. Successor Trustee by Merger, etc.......................... 29
SECTION 6.10. Eligibility; Disqualification............................. 30
SECTION 6.11. Preferential Collection of Claims Against Company......... 30
ARTICLE 7 DISCHARGE OF INDENTURE......................................... 30
SECTION 7.01. Termination of Company's Obligations...................... 30
SECTION 7.02. Application of Trust Money................................ 31
SECTION 7.03. Repayment to Company...................................... 31
SECTION 7.04. Reinstatement............................................. 32
ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS............................ 32
SECTION 8.01. Without Consent of Holders................................ 32
SECTION 8.02. With Consent of Holders................................... 33
SECTION 8.03. Compliance with Trust Indenture Act....................... 34
SECTION 8.04. Effect of Supplemental Indentures......................... 34
SECTION 8.05. Notation on or Exchange of Securities..................... 34
SECTION 8.06. Trustee Protected......................................... 34
SECTION 8.07. Record Date............................................... 34
ARTICLE 9 REDEMPTIONS.................................................... 35
SECTION 9.01. Optional Redemption; Notice to Trustee.................... 35
SECTION 9.02. Selection of the Securities to be Redeemed................ 35
SECTION 9.03. Notice of Redemption...................................... 35
SECTION 9.04. Effect of Notice of Redemption............................ 36
SECTION 9.05. Deposit of Redemption Price............................... 36
SECTION 9.06. Securities Redeemed in Part............................... 37
ARTICLE 10 SUBORDINATION................................................. 37
SECTION 10.01. Agreement to Subordinate................................. 37
SECTION 10.02. Liquidation; Dissolution; Bankruptcy..................... 37
SECTION 10.03. Default on Senior Debt................................... 38
SECTION 10.04. Acceleration of Securities............................... 39
SECTION 10.05. When Distribution Must Be Paid Over...................... 39
SECTION 10.06. Notice by Company........................................ 39
SECTION 10.07. Subrogation.............................................. 39
SECTION 10.08. Relative Rights.......................................... 40
SECTION 10.09. Subordination May Not Be Impaired........................ 40
SECTION 10.10. Distribution or Notice to Representative................. 40
SECTION 10.11. Rights of Trustee and Paying Agent....................... 40
SECTION 10.12. Authorization to Effect Subordination.................... 41
SECTION 10.13. Amendments............................................... 41
ARTICLE 11 COLLATERAL AND SECURITY....................................... 41
SECTION 11.01. Security Agreement....................................... 41
SECTION 11.02. Recording and Opinions................................... 42
SECTION 11.03. Release of Collateral.................................... 42
SECTION 11.04. Certificates of the Company.............................. 44
SECTION 11.05. [intentioanlly omitted.]................................. 44
SECTION 11.06. Authorization of Actions to Be Taken by the Trustee Under
the Collateral Agreements............................... 45
SECTION 11.07. Authorization of Receipt of Funds by the Trustee Under the
Collateral Agreements................................... 45
SECTION 11.08. Termination of Security Interest......................... 45
SECTION 11.09. Subordination Agreement.................................. 45
ARTICLE 12 MISCELLANEOUS................................................. 45
SECTION 12.01. Trust Indenture Act Controls............................. 45
SECTION 12.02. Notices.................................................. 46
SECTION 12.03. Communication by Holders with Other Holders.............. 46
SECTION 12.04. Certificate and Opinion as to Conditions Precedent....... 47
SECTION 12.05. Statements Required in Certificate or Opinion............ 47
SECTION 12.06. Rules by Trustee and Agents.............................. 47
SECTION 12.07. Legal Holidays........................................... 47
SECTION 12.08. No Recourse Against Others............................... 48
SECTION 12.09. Benefits of Indenture.................................... 48
SECTION 12.10. Duplicate Originals...................................... 48
SECTION 12.11. Governing Law............................................ 48
SECTION 12.12. No Adverse Interpretation of Other Agreements............ 48
SECTION 12.13. Successors............................................... 48
SECTION 12.14. Severability............................................. 48
SECTION 12.15. Table of Contents, Headings, etc......................... 49
Exhibit A - Form of Security............................................ A-1
Exhibit B - Security Agreement.......................................... B-1
INDENTURE dated as of ---- ---, 2002 between VISKASE COMPANIES, INC., a
Delaware corporation (the "Company"), and XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, a national (banking) association organized under the
laws of the United States (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation and issuance of its 8%
Senior Subordinated Secured Notes Due 2008 (the "Securities") of
substantially the tenor and amount set forth in Exhibit A attached hereto and
made a part hereof, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid and binding obligations of the Company, and to make this
Indenture a valid and binding agreement of the Company, all in accordance
with their respective terms, have been done.
NOW, THEREFORE, each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
As used herein, the following terms shall have the following meanings.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such specified Person.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Applicable Working Capital Allowance" means the lesser of (i) the
Working Capital Allowance and (ii) the Preliminary Consolidated Cash Flow.
"Asset Sale" means, with respect to any Person, any sale, transfer or
other disposition or series of sales or other dispositions (including,
without limitation, by way of merger, consolidation or Sale and Leaseback
Transaction) by such Person or any of its Subsidiaries to any Person, other
than (w) the creation of any Lien not prohibited by the terms hereof or the
Security Agreement, (x) one of such Person's direct or indirect Wholly Owned
Subsidiaries, (y) any other Person with respect to which such Person is a
direct or indirect Wholly Owned Subsidiary and (z) any direct or indirect
Wholly Owned Subsidiary of any such other Person specified in clause (y), of
(i) all or any Capital Stock in any of its Subsidiaries, (ii) all or
substantially all of the Property of a Subsidiary of such Person, (iii) all
or substantially all of the Property of any division or comparable business
segment of such Person or any of its Subsidiaries, or (iv) other assets of
such Person or any of its Subsidiaries outside of the ordinary course of
business.
"Bankruptcy Law" means Title 11 of the United States Code or any similar
federal or state laws for the relief of debtors.
"Board of Directors" of any corporation means the board of directors of
such corporation or any duly authorized committee of the board of directors
of such corporation.
"Business Day" means any day that is not a Legal Holiday.
"Capital Lease Obligation" means, at any time, the amount of the
liability with respect to a lease that would be required at such time to be
capitalized on a balance sheet of such Person prepared in accordance with
GAAP.
"Capital Stock" in any Person means any and all shares, interests,
participations or other equivalents in the equity interest (however
designated) in such Person and any rights (other than debt securities
convertible into an equity interest), warrants or options to acquire an
equity interest in such Person.
"Collateral" has the meaning given such term in the Security Agreement.
"Company" means Viskase Companies, Inc. unless and until a successor of
Viskase Companies, Inc. replaces it pursuant to this Indenture, and
thereafter means such successor.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Operating Income of such Person and its Consolidated
Subsidiaries for such period, decreased by (i) capital expenditures
(including investments in Capital Leases and capitalized interest), (ii)
payments under any Lease Back Agreement or Capital Lease Obligations without
duplication of amounts paid under the Lease Back Agreements, (iii) principal
paid on any Senior Debt and on the Securities; (iv) interest expense (not
including interest capitalized on the Securities, but including cash interest
paid on the Securities), (v) cash income taxes paid; (vi) any amounts
deducted as Applicable Working Capital Allowance during the period for which
Consolidated Cash Flow is being determined; and (vii) if Consolidated Cash
Flow is positive after taking into the deductions contemplated in clauses (i)
through (vi) above (the "Preliminary Consolidated Cash Flow"), the Applicable
Working Capital Allowance, if any.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or net loss, as the case may be) of such Person and its
Consolidated Subsidiaries for such period on a consolidated basis, determined
in accordance with GAAP; provided, that there shall be excluded therefrom,
without duplication, (i) items classified as extraordinary or nonrecurring
(other than the tax benefit of the utilization of net operating loss carry
forwards), (ii) the income (or loss) of any Joint Venture, except to the
extent of the amount of cash dividends or other cash distributions in respect
of Capital Stock therein actually paid during such period to such Person or
any of its Subsidiaries by such Joint Venture out of funds legally available
therefore, (iii) except to the extent includable pursuant to clause (ii), the
income (or loss) of any other Person accrued or attributable to any period
prior to the date it becomes a Consolidated Subsidiary of such Person or is
merged into or consolidated with such Person or any of its Consolidated
Subsidiaries or such other Person's Property (or a portion thereof) is
acquired by such Person or any of its Consolidated Subsidiaries, and (iv)
non-cash items decreasing or increasing Consolidated Net Income arising out
of currency translation effects.
"Consolidated Operating Income" means, without duplication, with respect
to any Person for any period, the Consolidated Net Income of such Person and
its Consolidated Subsidiaries for such period, (A) increased by the sum of
(i) the interest expense of such Person for such period, other than interest
capitalized by such Person and its Consolidated Subsidiaries during such
period, (ii) income tax expense of such Person and its Consolidated
Subsidiaries, on a consolidated basis, for such period (other than income tax
expense attributable to Asset Sales), (iii) depreciation expense of such
Person and its Consolidated Subsidiaries, on a consolidated basis, for such
period and (iv) amortization expense of such Person and its Subsidiaries, on
a consolidated basis, for such period and (B) decreased by any revenues
accrued but not received by such Person or any of its Subsidiaries from any
other Person (other than such Person or any of its Consolidated Subsidiaries)
in respect of any accounts receivable or Investment for such period, all as
determined in accordance with GAAP.
"Consolidated Subsidiaries" of any Person means all other Persons that
would be accounted for as consolidated Persons in such Person's financial
statements in accordance with GAAP.
"Control" means (except as otherwise specifically provided herein) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of Voting Securities, by agreement or otherwise; and the terms
"Controlling" and "Controlled" have meanings correlative to the foregoing.
"Corporate Trust Office" means the Corporate Trust Office of the Trustee
at which at any particular time its corporate trust business shall be
principally administered, which on the date hereof is the address of the
Trustee specified in Section 12.02.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official appointed under any Bankruptcy
Law.
"Default" means any event, act or condition the occurrence of which is,
or after notice or the passage of time or both would be, an Event of Default.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and to have satisfied all the obligations under this Indenture
relating to the Securities except (A) the rights of the Holders of Securities
to receive, from the trust fund described in Section 7.01 (b)(i), payment of
the Principal of and the interest on such Securities when such payments are
due, (B) the Company's obligations with respect to the Securities under
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 6.07 and 6.08 and (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder.
"Event of Default" has the meaning given such term in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Exchange Securities" has the meaning given such term in Section 2.02.
"Fractional Principal Amounts" has the meaning given such term in
Section 2.02.
"GAAP" means, at any date, United States generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be approved by
a significant segment of the accounting profession of the United States,
which are applicable to the circumstances as of the date of determination.
"Guarantee" by any Person means any direct or indirect obligation,
contingent or otherwise, of such Person, other than endorsements of
negotiable instruments for collection or deposit in the ordinary course of
business, (i) guaranteeing any obligation of any other Person, (ii) to
purchase or pay (or advance or supply funds for the purchase or payment of)
any obligation of another Person (whether arising by virtue of participation
agreements, by agreements to keep well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions or
otherwise), or (iii) entered into to assure, or with the practical effect of
assuring, in any other manner the obligee of such obligation of the payment
thereof or to protect such obligee against loss in respect thereof, either in
whole or in part, provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Holder" means any Person in whose name a Security is registered on the
Registrar's books.
"Indenture" means this Indenture as originally executed and as it may
from time to time be amended or supplemented by one or more supplemental
indentures hereto entered into pursuant to the applicable provisions hereof.
"Investment" means, as to any investing Person, any direct or indirect
advance, loan (other than extensions of trade credit on commercially
reasonable terms in the ordinary course of business that are recorded as
accounts receivable on the balance sheet of such Person or any of its
Subsidiaries in accordance with GAAP) or other extension of credit, Guarantee
or capital contribution to, or any acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of
indebtedness issued by any other Person.
"Joint Venture" of a Person means any Person in which the investing
Person has a joint or shared equity interest but which is not a Subsidiary of
such investing Person.
"Lease Agreement" means the Lease Agreement dated as of December 18,
1990 between The Connecticut National Bank, as Owner Trustee, General
Electric Capital Corporation ("GECC"), as Lessor and Viskase Corporation, as
Lessee, as amended through the date hereof and from time to time.
"Lease Back Agreements" means, together, (i) the Lease Agreement, (ii)
the Participation Agreement dated as of December 8, 1990 among Viskase
Corporation, as Lessee, Envirodyne Industries, Inc., as Guarantor, GECC, as
Owner Participant and The Connecticut National Bank, as Owner Trustee, as
amended through the date hereof and from time to time, and (iii) the Security
Agreement dated as of July 28, 2000 among Viskase Holding Corporation,
Viskase Corporation, Viskase Sales Corporation, State Street Bank and Trust
Company and GECC, as amended through the date hereof and from time to time.
"Legal Holiday" has the meaning given such term in Section 12.07.
"Lien" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement (including, without
limitation, any Capital Lease Obligations in the nature thereof) or other
encumbrance of any kind or description, including, without limitation, any
agreement to give or xxxxx x Xxxx.
"Net Available Proceeds" from any Asset Sale by any Person means cash or
readily marketable cash equivalents received (including by way of sale or
discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of Indebtedness or other obligations relating to such properties or
assets or received in any other noncash form) therefrom by such Person, net
of (i) all legal, title and recording tax expenses, commissions and other
fees and expenses incurred and all federal, state, provincial, foreign and
local taxes required to be accrued as a liability as a consequence of such
Asset Sale, (ii) all payments made by such Person or its Subsidiaries on any
Indebtedness which is secured by such assets in accordance with the terms of
any Lien upon or with respect to such assts or which must by the terms of
such Lien, or in order to obtain a necessary consent to such Asset Sale or by
applicable law, be repaid out of the proceeds from such Asset Sale, and (iii)
all distributions and other payments made to minority interest holders in
Subsidiaries of such Person or participants in Joint Ventures of such Person
as a result of such Asset Sale.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any indebtedness.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder on the date of
the Offer offering to purchase up to the principal amount of Securities
specified in such Offer at the purchase price specified in such Offer.
Unless otherwise required by applicable law, the Offer shall specify an
expiration date (the "Expiration Date") of the Offer to Purchase which shall
be, subject to any contrary requirements of applicable law, not less than 30
days or more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for the purchase of Securities within five Business
Days after the Expiration Date. The Company shall notify the Trustee at
least 15 Business Days (or such shorter period as is acceptable to the
Trustee) prior to the mailing of the Offer of the Company's obligation to
make an Offer to Purchase, and the Offer shall be mailed by the Company or,
at the Company's request, by the Trustee in the name and at the expense of
the Company. The Offer shall contain information concerning the business of
the Company and its Subsidiaries which the Company in good faith believes
will enable such Holders to make an informed decision with respect to the
Offer to Purchase (which at a minimum will include (i) the most recent annual
and quarterly financial statements and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" contained in the documents
required to be filed with the Trustee pursuant to Section 3.03 (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to
in clause (i) (including a description of the events requiring the Company to
make the Offer to Purchase), (iii) if applicable, appropriate pro forma
financial information concerning the Offer to Purchase and the events
requiring the Company to make the Offer to Purchase and (iv) any other
information required by applicable law to be included therein). The Offer
shall contain all instructions and materials necessary to enable such Holders
to tender Securities pursuant to the Offer to Purchase. The Offer shall also
state:
(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the Purchase Amount (as such term is defined in Section
11.03(c) hereof);
(4) the purchase price to be paid by the Company for each
$1,000 aggregate Principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder;
(6) the instructions that Holders must follow in order to tender
their Securities;
(7) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become
due and payable upon each Security accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at the
place or places specified in the Offer prior to the close of business on
the Expiration Date (such Security being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing and bearing appropriate signature guarantees);
(10) that each Holder will be entitled to withdraw all or any
portion of the Securities tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Expiration Date, a
telegram, facsimile transmission or letter setting forth the name of the
Holder, the Principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered (if tendered by
physical delivery) and a statement that such Holder is withdrawing all
or a portion of such tender;
(11) that (a) if Securities with an aggregate Principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (b) if Securities with an aggregate Principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase Securities
having an aggregate Principal amount equal to the Purchase Amount on a
pro rata basis; and
(12) that in the case of any Holder whose Security is purchased
only in part the Company shall execute, and the Trustee shall
authenticate and deliver to such Holder without service charge, a new
Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate Principal amount equal to and in exchange
for the unpurchased portion of the Security so tendered.
"Officer" of any corporation means the Chairman of the Board of
Directors, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of such corporation.
"Officers' Certificate" of any corporation means a certificate delivered
to the Trustee that complies with Section 12.05 and that is signed by two
Officers of such corporation.
"Opinion of Counsel" means a written opinion that complies with Section
12.05 from legal counsel who is reasonably acceptable to the Trustee. Such
legal counsel may be an employee of or counsel to the Company or the Trustee.
Legal counsel who is an employee of the Company or its Affiliates shall be
deemed to be reasonably acceptable to the Trustee.
"Paying Agent" has the meaning given such term in Section 2.03.
"Payment Blockage Notice" has the meaning given such term in Section
10.03(a)(ii).
"Permitted Junior Securities" means equity interests in the Company or
debt securities that are subordinated to all Senior Debt (and any debt
securities issued in exchange for Senior Debt) on terms substantially as
favorable to the Senior Debt as the Securities are subordinated to Senior
Debt pursuant to the Indenture.
"Person" means any individual, partnership, corporation, limited
liability company, venture, joint venture, unincorporated organization,
joint-stock company, trust or any government or agency or political
subdivision thereof or other entity of any kind.
"PIK Notes" has the meaning given such term in Section 1 of the form of
Security attached hereto as Exhibit A.
"Preliminary Consolidated Cash Flow" has the meaning given such term in
the definition of "Consolidated Cash Flow."
"Principal" of a Security means the principal amount of the Security.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person.
"Purchase Amount" has the meaning given such term in Section 11.03(c).
"Redemption Date" means, with respect to any Security to be redeemed,
the date fixed by the Company for such redemption pursuant to this Indenture
and such Security.
"Redemption Price" means, with respect to any Security to be redeemed,
the price fixed for such redemption pursuant to this Indenture and such
Security.
"Registrar" has the meaning given such term in Section 2.03.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
"Sale and Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which Property is sold by such
Person or a Subsidiary of such Person and thereafter leased back from the
purchaser thereof by such Person or one of the Subsidiaries of such Person.
"SEC" means the Securities and Exchange Commission, as from time to time
constituted, or any similar agency then having jurisdiction to enforce the
Securities Act.
"Securities" has the meaning set forth in the first recital paragraph of
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"Security Agreement" means the Security Agreement, dated as of the date
hereof, as the same may be amended, supplemented or otherwise modified from
time to time, the form of which is attached hereto as Exhibit B.
"Senior Debt" means any secured indebtedness (including all obligations
with respect thereto) of the Company, not to exceed a principal amount of $25
million, outstanding from time to time after the date hereof, which (i) is
utilized exclusively to provide working capital to the Company and (ii) does
not expressly provide that it is on a parity with or subordinated in right of
payment to the Securities and all Obligations with respect thereto.
"Significant Subsidiary" means a "significant subsidiary" within the
meaning of Rule 405 of the Securities Act.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the Principal of such Security or such installment of
Interest is due and payable, without regard to any events which might cause
the acceleration of such date.
"Subordination Agreement" means the Subordination Agreement to be dated
the date hereof by and among State Street Bank and Trust Company, GECC, and
the Trustee.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Securities is at the time directly or indirectly
owned or Controlled by such Person, by one or more Subsidiaries of such
Person or by such Person and one or more Subsidiaries thereof, or (ii) any
other Person (other than a corporation) in which such Person, one or more
Subsidiaries thereof or such Person and one or more Subsidiaries thereof,
directly or indirectly, at the date of determination thereof has at least a
majority ownership interest with respect to voting in the election of
directors or trustees thereof (or such other Persons performing similar
functions). For purposes of this definition, any directors' qualifying
shares shall be disregarded in determining the ownership of a Subsidiary.
"Surviving Entity" means the entity formed by or surviving any
consolidation or merger involving the Company or to which a transfer, sale,
assignment, conveyance or lease of all or substantially all of the Company's
Property is made.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
execution of this Indenture, except as provided in Section 8.03.
"Trust Officer", when used with respect to the Trustee, means any
officer assigned to and working in the Corporate Trust and Agency Group of
the Trustee (or any successor group) of the Trustee, including, without
limitation, any vice president, assistant vice president, assistant
secretary, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers who shall, in any case, be responsible for the
administration of this document or have familiarity with it, and also means,
with respect to a particular corporate trust matter, any other officer to
whom such matter is referred at the Corporate Trust Office because of his or
her knowledge of and familiarity with the particular subject.
"Trustee" means the Person named as such in this Indenture until a
successor replaces such Person in accordance with the terms of this
Indenture, and thereafter means such successor.
"U.S. Government Obligations" means (i) any direct obligation of, or
obligation guaranteed by, the United States of America for the payment of
which the full faith and credit of the United States of America is pledged
and which is not callable at the issuer's option, and (ii) any depository
receipt issued by a bank or trust company 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.
"Voting Securities" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders
thereof, under ordinary circumstances and in the absence of contingencies, to
vote for members of the Board of Directors of such Person (or Persons
performing functions equivalent to those of such members)
"Wholly Owned Subsidiary" of a Person means any Subsidiary of such
Person 100% of the total Voting Securities of which, other than directors'
qualifying shares, is at the time owned by such Person and/or one or more
Wholly Owned Subsidiaries of such Person.
"Working Capital Allowance" means $2 million less the aggregate
Applicable Working Capital Allowance taken into account for the calculation
of Consolidated Cash Flow for all previous periods for which Consolidated
Cash Flow is calculated for purposes of this Indenture.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provisions of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the indenture securities means the Company or the surviving
corporation, as the case may be, or any other obligor on the Securities.
(b) All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(l) a term defined in this Article 1 has the meaning in this
Indenture assigned to it in this Article 1;
(2) except as otherwise set forth in this Indenture, an accounting
term not otherwise defined herein has the meaning assigned to it in
accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(7) reference herein to any Article or Section refers to such Article
or Section hereof.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Securities shall be generally designated the Company's 8% Senior
Subordinated Secured Notes Due 2008. Their stated maturity shall be December
1, 2008 and they shall bear interest accruing from December 1, 2001 at the
rate of 8% per annum payable at the times and in accordance with terms
contained in the Securities, until the Principal thereof is paid or duly
provided for. The Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, attached hereto, which is
hereby expressly made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
usage or agreements to which the Company is a party and such appropriate
insertions, omissions, substitutions and other variations as are permitted by
this Indenture. The Company shall furnish any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the
date of its authentication.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture, and 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 AND AUTHENTICATION; AGGREGATE PRINCIPAL AMOUNT.
The Securities shall be signed for the Company by the Company's
President or a Vice President and shall be attested by the Company's
Secretary or an Assistant Secretary, in each case by manual or facsimile
signature. The Company's seal may be reproduced or imprinted on the
Securities by facsimile or otherwise.
If a Person whose signature is on a Security no longer holds his office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until executed and issued by the Company
and authenticated by the manual signature of the Trustee. The signature of
the Trustee shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue up to an
aggregate Principal amount of $60,000,000 upon a written order of the Company
signed by two Officers. The aggregate Principal amount of Securities
outstanding at any time may not exceed the amount of $60,000,000 except (i)
for PIK Notes and (ii) as provided in Section 2.07. The Securities shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and any integral multiple thereof, except that (i) PIK Notes and (ii)
Securities issued in exchange for any of the Company's 101/4% Senior Notes
due 2001 ("Exchange Securities") may be issued in denominations less than
$1,000 (such principal amount, if less than $1,000, or, if such principal
amount is greater than $1,000, the difference between such principal amount
and the highest integral multiple of $1,000 which is less than such principal
amount, being referred to as a "Fractional Principal Amount"), which PIK
Notes and Fractional Principal Amount of Exchange Securities shall be issued
in any whole dollar amount, rounded to the nearest dollar.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities, which authenticating agent shall be
compensated by the Company. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Securities whenever the Trustee may
do so, except with regard to the original issuance of the Securities. Except
as provided in the preceding sentence, each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Securities and of their
transfer and exchange. At all reasonable times, the Securities register
shall be open to inspection by the Trustee. The Company may appoint one or
more co-Registrars and one or more additional Paying Agents. The term
"Paying Agent" includes any additional Paying Agent. The Company, any
Subsidiary of the Company or any of their respective Affiliates may act as
Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall implement the provisions of
this Indenture that relate to such Agent. The Company may change or add any
Paying Agent, Registrar or co-Registrar without notice to any Holder, but
only upon notice given to the Trustee of such change or addition and of the
address of any Agent not a party to this Indenture. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree that such Paying Agent will:
(a) hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of Principal of or interest on the
Securities (whether such money has been paid to it by the Company or any
other obligor on the Securities) until such sums shall be paid to Holders or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or any
other obligor on the Securities) in making any such payment; and
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent and account for any funds disbursed. If the
Company, any Subsidiary of the Company or any of their respective Affiliates
acts as Paying Agent, it shall segregate the money and hold it as a separate
trust fund for the benefit of Holders. 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. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee.
SECTION 2.05. HOLDER 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 Holders. If the Trustee is not the Registrar, the Company and each other
obligor on the Securities shall furnish to the Trustee not less than ten
Business Days before each interest payment date and at such other times as
the Trustee may request in writing all information in the possession or
control of the Company or any Paying Agent as to the names and addresses of
Holders, in such form and as of such date as the Trustee may reasonably
require. The Trustee and the Registrar may rely on the accuracy of such list
as the same may be amended from time to time.
SECTION 2.06. TRANSFER AND EXCHANGE.
Securities may be transferred or exchanged only on the Securities
register maintained pursuant to Section 2.03. Prior to due presentment of a
Security for registration of transfer, the Holder of any Securities, as shown
on such Securities register, shall be deemed the absolute owner thereof for
all purposes, and none of the Company, the Trustee, or any agent of the
Company or the Trustee shall be affected by any notice to the contrary, and
payment of or on account of the Principal or interest with respect to such
Securities shall be made only to or in accordance with the written order of
such Holder or of his attorney duly authorized in writing. All such payments
shall satisfy and discharge the liabilities upon such Securities to the
extent of the amounts so paid.
When Securities are presented to the Registrar or a co-Registrar with a
request to register a transfer or make an exchange for an equal Principal
amount of Securities of other denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange if its requirements therefor
are met; provided, that every Security presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer in a form satisfactory to the
Registrar and the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfer and
exchanges, the Company shall execute and issue and the Trustee shall
authenticate Securities at the Registrar's request. No service charge to the
Holder shall be made for any registration of transfer or exchange, but the
Company may require from the transferring or exchanging Holder payment of a
sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charges payable upon exchanges pursuant to Sections
2.10, 8.05 or 9.06 hereof).
All Securities issued upon any registration or transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
The Company shall not be required to and, without the prior written
consent of the Company, the Registrar shall not be required to, register the
transfer or exchange of (i) any Securities selected for redemption under
Section 9.02 hereof and (ii) any Securities during a period commencing 15
days prior to the date of any selection of Securities for redemption under
Section 9.02 and ending at the close of business on such date of selection.
SECTION 2.07. REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding. If the Company and the Trustee
receive evidence to their satisfaction that a Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Company's and the Trustee's
requirements are met and in the absence of notice to the Company or the
Trustee that the Security has been acquired by a protected purchaser. If
required by the Trustee or the Company, such Holder shall provide an
indemnity bond sufficient in the judgment of both the Company and the Trustee
to protect the Company, the Trustee, any Agent or any authenticating agent
from any loss which any of them may suffer if a Security is replaced. The
Company may charge the Holder who obtains a replacement Security pursuant to
this Section 2.07 for the Company's and the Trustee's expenses in replacing
such Security.
Every replacement Security issued pursuant to the provisions of this
Section 2.07 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies against the Company and the Trustee
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 2.08. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities executed
on behalf of the Company and authenticated by the Trustee except for those
cancelled by the Trustee, those delivered to the Trustee for cancellation and
those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a protected purchaser.
If Securities are considered paid under Section 3.01, they cease to be
outstanding and interest on them ceases to accrue.
Except as and to the extent provided in Section 2.09, a Security does
not cease to be outstanding because the Company, any of its Subsidiaries or
any of their respective Affiliates holds the Security.
SECTION 2.09. TREASURY SECURITIES.
Notwithstanding anything to the contrary set forth in Section 316(a) of
the TIA (the provisions of which are hereby excluded), (i) in determining
whether the Holders of the required Principal amount of Securities have
concurred in any request, demand, authorization, notice, direction,
amendment, supplement, waiver or consent, Securities owned of record or
beneficially by the Company or any Subsidiary of the Company or any other
obligor on the Securities shall be considered as though they are not
outstanding (but the Securities owned of record or beneficially by any other
Affiliates shall be deemed outstanding for all purposes under this Indenture)
and (ii) in determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, notice, direction, amendment,
supplement, waiver or consent, only Securities owned by the Company, its
Subsidiaries or any other obligor on the Securities which the Trustee knows
are so owned shall be considered as though they are not outstanding. The
Trustee may require an Officers' Certificate listing the Securities owned by
the Company and, to the Company's knowledge, its Affiliates.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
execute and issue, and the Trustee shall authenticate upon written order of
the Company signed by two Officers, temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but
may have variations that the Company and the Trustee consider appropriate for
temporary Securities. Without unreasonable delay, the Company shall execute
and issue, and the Trustee shall authenticate, definitive Securities in
exchange for temporary Securities. Until such exchange, such temporary
Securities shall be entitled to the same rights, benefits and privileges as
the definitive Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and the Trustee shall destroy cancelled Securities in accordance
with its customary procedures and deliver a certificate of such destruction
to the Company. Subject to Section 2.07, the Company may not issue new
Securities to replace Securities that it has paid or that have been delivered
to the Trustee for cancellation.
SECTION 2.12. OVERDUE INTEREST.
If the Company fails to make a payment of interest (whether payable in
cash or by the issuance of PIK Notes) on the Securities when due by the terms
thereof, it shall pay interest on such overdue installments of interest
thereafter in any lawful manner to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the
Securities and in Section 3.01. The Company shall fix such special record
date and special payment date after consultation with and notice to the
Trustee. At least 15 days before the special record date, the Company shall
give Holders notice that states the special record date, related payment date
and amount of such interest to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP" number and, if
so, the Company shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Securities and that reliance may
be placed only on the other identification numbers printed on the Securities.
The Company shall promptly notify the Trustee of any change in the CUSIP
number.
ARTICLE 3
COVENANTS
SECTION 3.01. PAYMENT OF SECURITIES.
The Company shall punctually pay, or cause to be paid, the Principal of
and interest on the Securities on the dates and in the manner provided herein
and in the Securities. An installment of Principal (including any redemption
of Securities pursuant to Section 9.01 hereof and paragraph 6 of the
Securities) or interest shall be considered paid on the date due if either
(i) the Trustee or Paying Agent holds on that date money in accordance with
this Indenture designated in trust for and sufficient to pay such installment
and is not prohibited from paying such money to the Holders pursuant to the
terms of this Indenture or (ii) the Company issues PIK Notes in accordance
with paragraph 1 of the Securities.
The Company shall pay interest on overdue Principal at the same rate per
annum borne by the Securities. The Company shall pay interest on overdue
installments of interest at the same rate per annum borne by the Securities,
to the extent lawful.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall give prompt notice to the Trustee of the location, and
any change in the location, of the office or agency of the Registrar or
Paying Agent. If at any time the Company fails to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain an office or agency in the
Borough of Manhattan, City of New York, for such purposes. The Company shall
give prompt notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee as the office of the Company to be maintained in accordance with
Section 2.03.
SECTION 3.03. SEC REPORTS.
The Company shall file with the Trustee within 15 days after it files
them with the SEC 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 files with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company and any other obligor on the Securities also shall comply
with the other provisions of TIA Section 314 (a).
SECTION 3.04. CONTINUED EXISTENCE AND RIGHTS.
Subject to Article 4, 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 of its Subsidiaries in
accordance with their respective organizational documents and the material
rights (charter and statutory), licenses and franchises of the Company and
its Subsidiaries; provided, that neither the Company nor any of its
Subsidiaries shall be required to preserve any such right or franchise or its
corporate existence if the Company determines that the loss thereof is not
and will not be adverse in any material respect to the Holders.
SECTION 3.05. MAINTENANCE OF PROPERTY; INSURANCE.
(a) The Company shall, and shall cause each of its Subsidiaries to,
maintain its Property in good working order and condition and make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided, that
nothing in this Section 3.05 shall prevent the Company or any of its
Subsidiaries from discontinuing the operation and maintenance of any of its
Property if, in the judgment of the Company or the Subsidiary, as the case
may be, such discontinuance is desirable in the conduct of its business and
not disadvantageous in any material respect to the Holders; provided,
further, that nothing in this Section 3.05 shall prevent the Company or any
of its Subsidiaries from discontinuing or disposing of any of its Property to
the extent otherwise permitted by this Indenture.
(b) The Company shall insure and keep insured, and shall cause each
Subsidiary to insure and keep insured, with financially sound and reputable
insurers, so much of their respective Property and in such amounts as is
usually and customarily insured by companies engaged in similar businesses
with respect to Property of a similar character.
SECTION 3.06. TAXES AND CLAIMS.
The Company shall, and shall cause each of its Subsidiaries to, pay and
discharge, as the same may become due and payable, all federal, state, local
and foreign taxes, assessments, fees and other governmental charges or levies
against it or on any of their respective Property, as well as claims of any
kind which, if unpaid, might become a material Lien upon any of their
respective Property and shall pay (before they become delinquent) all other
obligations and liabilities; provided, however, that the foregoing shall not
require the Company or any Subsidiary to pay or discharge any such tax,
assessment, fee, charge, levy or Lien so long as it shall be diligently
contesting the validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves in accordance with GAAP
with respect thereto.
SECTION 3.07. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 105 days after the end
of each of the Company's fiscal years, an Officers' Certificate stating that
a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Persons with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Person signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he may have knowledge) and
that to the best of his knowledge no event has occurred and remains in
existence by reason of which payments on account of the Principal of or
interest on the Securities are prohibited.
No later than 15 days preceding each of the Interest Payment Dates of
March 31, 2006, June 15, 2006, September 15, 2006, December 15, 2006 and
March 31, 2007, the Company shall deliver to the Trustee (i) an Officer's
Certificate stating (x) the Consolidated Cash Flow for the 12 months ended
such Interest Payment Date, (y) whether the interest payable as of such
Interest Payment Date will be paid in cash or by issuance of PIK Notes in
accordance with Section 1 of the Securities, and, (z) in the event the
Company will be issuing PIK Notes, the aggregate Principal amount of such PIK
Notes and the amount of cash to be paid with respect to interest payable as
of such Interest Payment Date.
The Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of (i) any Default or
Event of Default or (ii) any default or event of default under the Lease
Agreement referred to in clause (4) of Section 5.01(a), an Officers'
Certificate specifying such Default, Event of Default, default or event of
default. The fiscal year of the Company ends on December 31 in each year and
the Company shall give notice to the Trustee promptly upon any change in such
fiscal year.
ARTICLE 4
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 4.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not (a) consolidate with or merge with or into any
other Person or permit any other Person to consolidate with or merge with or
into the Company or (b) directly or indirectly transfer, convey, sell, lease
or otherwise dispose of all or substantially all of its Property, in a single
transaction or in a series of related transactions, unless, in any such case:
(1) (A) the Company is the continuing corporation in the case of a
merger or (B) the Surviving Entity is a corporation, a limited
liability company or partnership organized under the laws of the
United States, any state thereof or the District of Columbia and
expressly assumes by supplemental indenture all of the
obligations of the Company under the Indenture and the
Securities;
(2) no Event of Default or Default shall have occurred and be
continuing immediately after giving effect to such transaction;
and
(3) the Trustee shall have received an Officers' Certificate and/or
an Opinion of Counsel reasonably acceptable to the Trustee to the
effect that the merger, consolidation, sale or other transaction
complies with each provision of this Section 4.01.
Notwithstanding the foregoing paragraph, this Section 4.01 shall not prohibit
a transaction the sole purpose of which (as determined in good faith by the
Board of Directors of the Company) is to change the state of incorporation of
the Company.
SECTION 4.02. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
with or into, any other Person or any conveyance, transfer or lease of the
Property of the Company substantially as an entirety in accordance with
Section 4.01, the Surviving Entity shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the
Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. EVENTS OF DEFAULT; NOTICE OF DEFAULT.
(a) An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Security when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Company defaults in the payment of the Principal of any
Security when the same becomes due and payable at maturity, upon
redemption, upon acceleration or otherwise;
(3) the Company fails to observe or perform any other
covenant, condition or agreement on the part of the Company to be
observed or performed pursuant to the terms of this Indenture or the
Securities (other than a default in the performance, or breach, of a
covenant, warranty or agreement which is specifically dealt with
elsewhere in this Section), and the Default continues for the period and
after the notice specified in paragraph (b) below;
(4) there shall be an Event of Default (as defined in the Lease
Agreement) under the Lease Agreement, as a result of which the Lessor
(as defined in the Lease Agreement), by notice to the Lessee (as defined
in the Lease Agreement) rescinds or terminates the Lease Agreement
pursuant to Section 18.01(a) of the Lease Agreement;
(5) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding for any
other relief;
(ii) consents by answer or otherwise to the commencement
against it of an involuntary case or proceeding;
(iii) seeks or consents to the appointment of a
Custodian of it or for all or substantially all of its Property;
(iv) makes a general assignment for the benefit of its
creditors; or
(v) admits in writing that it generally is unable to
pay its debts as the same become due.
(6) 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 of the Company in an involuntary case or
proceeding;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary of the Company or for all or substantially
all of its respective Property; or
(iii) orders the liquidation of the Company or any
Significant Subsidiary of the Company;
and the order or decree remains unstayed and in effect for 60 days;
(7) one or more judgments or orders are rendered against the
Company or one or more of its Subsidiaries in an amount in excess of
$10,000,000 and has not been discharged and there is any period of 60
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(8) the Company breaches any material representations, warranty
or agreement set forth in the Security Agreement or the Security
Agreement shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect,
and the Default continues for the period and after the notice specified
in paragraph (b) below.
(b) A continuing Default under clause (a)(3) or (a)(8) above is not
an Event of Default unless and until the Trustee gives notice to the Company,
or the Holders of at least 25% in aggregate Principal amount of the then
outstanding Securities give notice to the Company and the Trustee, of the
Default and the Company does not cure the Default within 30 days after
receipt of such notice. Any notice of Default must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default"
under the terms of this Indenture. Such notice shall be given by the Trustee
if so requested in writing by the Holders of at least 25% in aggregate
Principal amount of the then outstanding Securities. When a Default under
clause (a)(3) or (a)(8) above is cured within such 30-day period, it ceases
to exist.
SECTION 5.02. ACCELERATION.
If an Event of Default (other than an Event of Default with respect to
the Company specified in clauses (a)(5) and (a)(6) of Section 5.01) occurs
and is continuing, (i) the Trustee may, by written notice given to the
Company, or (ii) the Holders of at least 25% in aggregate Principal amount of
the then outstanding Securities may, by written notice given to the Company
and the Trustee, or (iii) the Trustee shall, upon the written request of
Holders of at least 25% in aggregate Principal amount of the then outstanding
Securities and by written notice given by the Trustee as described in clause
(i) above, declare all unpaid Principal of and all accrued and unpaid
interest on all the Securities then outstanding to be due and payable. Upon
such declaration of acceleration, such Principal and accrued interest shall
be due and payable immediately in cash without any presentment, demand,
protest or notice to the Company, all of which the Company expressly waives.
If an Event of Default specified in clauses (a)(5) or (a)(6) of Section
5.01 occurs with respect to the Company, all unpaid Principal and accrued and
unpaid interest on the Securities then outstanding shall ipso facto become
and be immediately due and payable in cash without any declaration or other
act on the part of the Trustee or any Holder.
Before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in aggregate Principal
amount of the then outstanding Securities by written notice to the Trustee
may rescind an acceleration and its consequences if (i) the rescission would
not conflict with any judgment or decree of a court of competent
jurisdiction, (ii) all existing Defaults and Events of Default have been
cured or waived except nonpayment of Principal or interest on the Securities
that has become due solely because of the acceleration, and (iii) overdue
interest and, to the extent the payment of such interest is lawful, interest
on overdue installments of interest and overdue Principal, which has become
due otherwise than by such declaration of acceleration, has been paid.
SECTION 5.03. OTHER REMEDIES.
Notwithstanding any other provision in this Indenture, if an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
by an action at law, suit in equity or other appropriate proceeding to
collect the payment of Principal of and/or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture,
including taking any actions permitted under the Security Agreement.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default or a Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in such Event of Default or
Default. All available remedies are cumulative to the extent permitted by
law.
SECTION 5.04. WAIVER OF DEFAULTS.
Notwithstanding anything to the contrary set forth in Section 316(a) of
the TIA (the provisions of which are hereby excluded), and subject to
Sections 5.07 and 8.02, holders of not less than a majority in aggregate
Principal amount of the then outstanding Securities by notice to the Trustee
may, on behalf of the Holders of all of the Securities then outstanding,
waive any existing Default or Event of Default and its consequences except a
continuing Default or Event of Default in the payment of Principal or
interest on any Security. When a Default or Event of Default is so waived,
it is deemed cured and it ceases to exist, but no such waiver shall extend to
any subsequent Default or Event of Default or impair any right consequent
thereon.
SECTION 5.05. CONTROL BY MAJORITY.
Notwithstanding anything to the contrary set forth in Section 316(a) of
the TIA (the provisions of which are hereby excluded), holders of a majority
in aggregate Principal amount of the then outstanding Securities, by notice
given to the Trustee, 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. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or would subject the
Trustee to personal liability, unless it has obtained appropriate indemnity.
The Trustee may take any other action deemed proper by the Trustee and that
is not inconsistent with such direction.
SECTION 5.06. LIMITATION ON SUITS.
Except as provided in Section 5.07, a Holder may not pursue any remedy
with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) Holders of at least 25% in aggregate Principal amount of
the then outstanding Securities make a request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after the receipt of such request and offer of indemnity; and
(5) prior to or during such 60-day period, the Holders of a
majority in aggregate Principal amount of the then outstanding
Securities do not give the Trustee a direction inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 5.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
The right of any Holder to receive payment of Principal of and interest
on any Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 5.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in clause (a)(1) or (a)(2) of Section
5.01 occurs and is continuing, the Company will, upon demand of the Trustee,
pay to the Trustee for the benefit of the Holders, the whole amount then due
and payable on the Securities for Principal and interest, and interest on any
overdue Principal and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installment of interest, at the rate
borne by the Securities, and in addition thereto, such further amount as
shall be sufficient to cover the reasonable out-of-pocket costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, in
accordance with the preceding paragraph, the Trustee may recover judgment in
its own name and as trustee of an express trust against the Company or any
other obligor on the Securities for the whole amount of Principal and accrued
interest remaining unpaid on the Securities, together with, to the extent
that payment of such interest is lawful, interest on overdue Principal and
interest on overdue installments of interest, in each case at the rate per
annum borne by the Securities, and such further amount as shall be sufficient
to cover the reasonable costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 5.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
In the case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company (or any other obligor
upon the Securities), the Securities or the Property of the Company, the
Trustee (irrespective of whether the Principal of the Securities shall then
be due and payable as therein expressed or by acceleration or otherwise, and
irrespective of whether the Trustee shall have made any demand on the Company
or any other obligor on the Securities for the payment of overdue Principal
or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise, to file and prove a claim for the whole amount of
Principal and interest owing and unpaid in respect of the Securities, to file
such other papers or documents and to participate as a member, voting or
otherwise, of any committee of creditors, as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding.
The Trustee is 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 receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments, directly to the
Holders and to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding, except
that the Trustee shall be permitted to participate as a member of any
committee of creditors (as set forth in the first paragraph of this Section
5.09).
SECTION 5.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 5, it shall
pay out the money in the following order:
(1) First, to the Trustee for amounts due under Section 6.07;
(2) Second, to holders of Senior Debt to the extent required by
Article 10;
(3) Third, to Holders for amounts due and unpaid on the
Securities for Principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for Principal and interest, respectively; and
(4) Fourth, to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.10.
SECTION 5.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
to be taken by it as Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and disbursements, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 5.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.07,
or a suit by Holders of more than 10% in aggregate principal amount of the
then outstanding Securities.
ARTICLE 6
TRUSTEE
SECTION 6.01. 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 man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. The Trustee, however, shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture but need not verify the accuracy of the contents thereof.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph shall not limit the effect of paragraph (b)
of this Section nor of TIA Section 315(a);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) 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 5.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to the provisions of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk any of its own funds or incur any liability other than as
expressly assumed by the Trustee hereunder unless it receives indemnity
satisfactory to it against loss, liability, cost or expense.
(h) Except as otherwise set forth in Article 7, the Trustee or a
Paying Agent shall, after deduction of amounts due to it, promptly pay any
money received by it to the Holders of the Securities pursuant to the terms
of this Indenture.
SECTION 6.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document. The Trustee may
conclusively rely as to the identity and addresses of Holders and other
matters contained therein on the register of the Securities maintained by the
Registrar pursuant to Section 2.03 and shall not be affected by notice to the
contrary.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel and may make such other
investigation as it deems appropriate. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on any
Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its own choosing and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(c) The Trustee may act through Trust Officers and other agents or
attorneys and shall not be responsible for the misconduct or negligence of
any Trust Officer or other 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 believes to be authorized or within its rights
or powers, provided that the Trustee's conduct does not constitute negligence
or bad faith.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
SECTION 6.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
the Trustee. Any Agent may do the same with like rights. The Trustee,
however, is subject to Sections 6.10 and 6.11.
SECTION 6.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the legality, validity or
adequacy of this Indenture or the Securities, it shall not be responsible for
the use or application of any money received by any Paying Agent other than
the Trustee, and it shall not be responsible for any statement in the
Securities other than its authentication or for any statement of the Company
in this Indenture.
SECTION 6.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall give each Holder notice of the
Default or Event of Default within 90 days after it occurs, unless such
Default or Event of Default shall have been cured or waived. Except in the
case of a Default or Event of Default in payment on any Security, the Trustee
may withhold notice if and for so long as its Board of Directors, executive
committee or a trust committee of its directors and/or Trust Officers in good
faith determines that withholding the notice is in the interests of Holders.
The notices provided for in this Section 6.05 shall be given in the manner
and to the extent provided in TIA Section 313(c).
SECTION 6.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each --------- following the date of this
Indenture, the Trustee shall mail to Holders and the Company a brief report
dated as of such date that complies with TIA Section 313(a); provided,
however, that if no event described in TIA Section 313(a) has occurred within
the previous 12 months then no report need be transmitted. The Trustee shall
also comply with TIA Section 313(b)(2) and transmit all reports required by
TIA Section 313(c).
A copy of each such report shall be filed, at the time of its mailing to
Holders, with the SEC and each stock exchange, if any, on which the
Securities are listed. The Company shall notify the Trustee when the
Securities are listed on any stock exchange or any delisting thereof.
SECTION 6.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be
limited by any law on compensation relating to the trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses, disbursements and advances incurred or
made by it in the performance of its rights and obligations hereunder. Such
expenses shall include the reasonable compensation, disbursements and out-of-
pocket expenses of the Trustee's agents, accountants, experts and counsel.
Such expenses shall also include any taxes or other reasonable costs incurred
by any trust created under Section 7.01.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it in connection with
the administration of this trust (including any duties pursuant to Section
7.01 hereof) and its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through negligence or bad faith or as a
result of settlement without the Company's consent.
To secure the Company's payment obligations in this Section 6.07, the
Trustee shall have a Lien prior to the Securities on all money or Property
held or collected by the Trustee, except money or Property held in trust to
pay Principal of or interest on particular Securities. Such Lien shall
survive the satisfaction and discharge of this Indenture.
The Company's obligations under this Section 6.07 and any Lien arising
hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article 7 and/or the
termination of this Indenture.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(a)(5) or (6), such expenses and
the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 6.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 6.08. The Trustee may resign at
any time. The Holders of a majority in aggregate Principal amount of the
then outstanding Securities may remove the Trustee by so notifying the
Trustee and the Company. If:
(1) the Trustee fails or ceases to comply with Section 6.10
after written request by the Company or any Holder who has been a bona
fide holder of a Security for at least six months;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee
or its Property; or
(4) the Trustee becomes incapable of acting,
then, in any such case, (i) the Company, by resolution of the Board of
Directors, may remove the Trustee, or (ii) subject to TIA Section 315(e), a
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
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 aggregate Principal amount of the then
outstanding Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in aggregate principal amount of the then
outstanding Securities may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
The Company shall give notice to the Holders of each removal or
resignation of a Trustee and appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
thereafter, subject to the Lien provided in Section 6.07, the retiring
Trustee shall transfer all Property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all of the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall give
a notice of its succession to each Holder.
Notwithstanding the replacement of the Trustee pursuant to this Section
6.08, the Company's obligations under Section 6.07 hereof shall continue for
the benefit of the retiring Trustee in connection with its rights and duties
hereunder prior to such replacement.
No successor Trustee shall accept its appointment unless it shall be
qualified and eligible under this Article 6.
SECTION 6.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee if such successor corporation complies with Section 6.10.
SECTION 6.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always 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 is subject to TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. Neither the Company
nor any Person directly or indirectly controlling, controlled by, or under
common control with the Company shall serve as Trustee.
SECTION 6.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Indenture and Trustee are subject to, and the Trustee shall at all
times comply with, TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or has been removed
shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 7
DISCHARGE OF INDENTURE
SECTION 7.01. TERMINATION OF COMPANY'S OBLIGATIONS.
(a) The Company may terminate, and shall be Discharged from, all its
obligations under the Securities and this Indenture (except those obligations
of the Company referred to in Sections 6.07, 7.03 and 7.04, which shall
survive) when all Securities previously authenticated and delivered (other
than mutilated, destroyed, lost or stolen Securities which have been replaced
or paid or Securities for whose payment money or securities have theretofore
been held in trust and thereafter repaid to the Company, as provided in
Section 7.03) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it under the Securities.
(b) In addition, at the Company's option, either (i) the Company
shall be deemed to have been Discharged from its obligations with respect to
the Securities on the 91st day after the applicable conditions set forth
below have been satisfied or (ii) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in
Sections 3.03, 3.04, 3.05, 3.06, 3.07, Article 4 and Section 11.03, and, in
the case of either clause (i) or (ii) above, the Lien on any Collateral
securing obligations under the Securities shall be released and the Security
Agreement shall no longer secure obligations under the Securities or this
Indenture, at any time after the applicable conditions set forth below have
been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders (A) United States Dollars in an amount, or (B) U.S. Government
Obligations which through the payment of interest (without consideration
of any reinvestment of such interest) and Principal in respect thereof
in accordance with their terms will provide, not later than one Business
Day before the due date of any payment, money in an amount, or (C) a
combination of (A) and (B), sufficient to pay and discharge through
maturity or redemption, as the case may be, each installment of
Principal of, and interest on, the outstanding Securities on the dates
such installments of interest or Principal are due;
(2) no Event of Default with respect to this Indenture or the
Securities shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit (or,
insofar as Section 5.01(a)(5) and Section 5.01(a)(6) of this Indenture
are concerned, at any time during the period ending on the 91st day
after the date of deposit, it being understood that this condition shall
not be deemed satisfied until the expiration of such period) will not
result in a breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which it is
bound;
(3) in the event of a Discharge pursuant to this Article 7, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that after the passage of 90 days after the deposit, the trust
funds will not be subject to the effect of any applicable Bankruptcy
Laws;
(4) the Company shall have paid or duly provided for the
payment of all amounts which are then, or which in the reasonable
judgment of the Trustee may become, due to the Trustee pursuant to
Section 6.07 hereof; and
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the satisfaction
and discharge of this Indenture have been complied with.
(c) After any such irrevocable deposit and after satisfaction of all
the conditions of this Section 7.01, the Trustee, upon the Company's request,
shall acknowledge in writing that the Company has been Discharged or is no
longer subject to the terms, provisions or conditions of the Sections of this
Indenture specified in clause (b)(ii) above, as the case may be. The Trustee
shall not be responsible for any calculations made by the Company in
connection with the deposit of funds pursuant to clause (b)(1) of this
Section 7.01.
SECTION 7.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust all money and U.S. Government
Obligations deposited with it pursuant to Section 7.01, and shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent (who shall hold the same in trust) and in accordance with this
Indenture to the payment of Principal of and interest on the Securities.
Cash and securities so held will not be subject to Article 10 hereof.
SECTION 7.03. REPAYMENT TO COMPANY.
Subject to applicable laws relating to the escheat of deposits, the
Trustee and the Paying Agent shall promptly pay to the Company upon written
request any excess money or U.S. Government Obligations held by them at any
time.
Subject to applicable laws relating to the escheat of deposits, the
Trustee and the Paying Agent shall pay to the Company upon written request
any money held by them for the payment of Principal or interest on Securities
that remains unclaimed for two years after the date upon which such payment
shall have come due; provided, however, that the Trustee or such Paying Agent
shall, upon the written request and at the expense of the Company, cause to
be published once in a newspaper of general circulation in The City of New
York or mailed to each Holder entitled to such money, notice that such money
remains unclaimed and that, after a date specified therein, which date shall
not be less than 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, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable abandoned
property law designates another Person.
SECTION 7.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Sections 7.01 and 7.02 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
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 7.01 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in
accordance with Section 7.01; provided, however, that if the Company has made
any payment of interest on or Principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. WITHOUT CONSENT OF HOLDERS.
The Company (when duly authorized by a resolution of its Board of
Directors), and the Trustee may amend or supplement this Indenture, the
Security Agreement or the Securities for the benefit of the Holders without
notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 4;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to make any change that does not materially adversely
affect the legal rights hereunder of any Holder;
(5) to comply with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA, as
contemplated by Section 12.01 or otherwise; or
(6) to evidence the acceptance of appointment by a successor
Trustee.
After an amendment under this Section becomes effective, the Company
shall give Holders a notice briefly describing the amendment.
SECTION 8.02. WITH CONSENT OF HOLDERS.
Subject to Section 5.07, upon the request of the Company (by a
resolution of its Board of Directors authorizing the execution thereof)
together with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Securities (by written consent(s) of
said Holders delivered to the Trustee), the Trustee shall amend this
Indenture, the Security Agreement or the Securities. Subject to Sections
5.04 and 5.07, the Holders of a majority in aggregate Principal amount of the
Securities then outstanding by notice to the Trustee may waive future
compliance in a particular instance by the Company with any provision of this
Indenture, the Security Agreement or the Securities.
Notwithstanding the provisions of this Section 8.02, without the written
consent of each Holder affected thereby (or in the case of clause (7) below,
the Holders of 66 2/3% in aggregate Principal amount of the Securities then
outstanding), an amendment or waiver, including a waiver pursuant to Section
5.04, may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment or waiver of any provision of this Indenture;
(2) reduce the rate of or change the time for payment
(including waivers of Defaults in the payment of interest) or the manner
of payment of interest on any Security;
(3) reduce the Principal of or change the fixed maturity of any
Security, or change the date on which any Security may be subject to
redemption or reduce the Redemption Price therefor;
(4) make any Security payable in money other than that stated
in the Security;
(5) make any change in Sections 5.04 or 5.07 or in this
paragraph of Section 8.02 (other than clause (7) hereof);
(6) waive a Default in the payment of the Principal of or
redemption payment under any Security; or
(7) amend or waive the provisions of clause (g)(i) of Section
11.03.
To secure a consent of the Holders under this Section hereof, it shall
not be necessary for the Holders 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 or waiver under this Section 8.02 becomes effective,
the Company shall give to all Holders affected thereby and to the Trustee a
notice briefly describing the amendment or waiver. Any failure by the
Company to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Upon the request of the Company accompanied by a copy of a resolution of the
Board of Directors of the Company authorizing the execution of any such
supplemental indenture and upon the filing with the Trustee of evidence of
the consent of the Holders as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture.
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities shall be set forth
in a supplemental indenture that complies with the TIA as then in effect.
SECTION 8.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Until an amendment or a waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every
subsequent holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 8.05. NOTATION ON OR EXCHANGE OF SECURITIES.
Upon the Company's request, the Trustee shall place an appropriate
notation (to be provided by the Company) about an amendment or waiver on any
Security thereafter authenticated. The Company in exchange for all
Securities may execute and issue and the Trustee shall authenticate new
Securities that reflect the amendment or waiver.
SECTION 8.06. TRUSTEE PROTECTED.
The Trustee shall sign all amendments, supplemental indentures and
waivers, except that the Trustee need not sign any supplemental indenture
that adversely affects its individual rights. In signing or refusing to sign
such amendment, supplemental indenture or waiver, the Trustee shall be
entitled to receive and, subject to Section 6.01, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that such amendment, supplemental indenture or waiver is authorized
or permitted by this Indenture that all conditions precedent to the execution
thereof have been met.
SECTION 8.07. RECORD DATE.
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
supplemental indenture, agreement or instrument or any waiver or any other
action by vote or consent authorized or permitted under this Indenture, and
shall promptly notify the Trustee of any such record date. If a record date
is fixed, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to vote or
consent to such supplemental indenture, agreement or instrument or waiver or
such other action or to revoke any vote or consent previously given, whether
or not such Persons continue to be Holders after such record date.
ARTICLE 9
REDEMPTIONS
SECTION 9.01. OPTIONAL REDEMPTION; NOTICE TO TRUSTEE.
The Company may redeem all or any portion of the Securities at any time
at a Redemption Price equal to the Principal amount thereof, plus accrued and
unpaid interest to the Redemption Date.
If the Company elects to redeem Securities pursuant to this Section 9.01
and paragraph 6 of the Securities, it shall give the Trustee written notice,
as set forth below, of the Redemption Date and the principal amount of
Securities to be redeemed.
The Company shall give notice to the Trustee by an Officers' Certificate
certifying resolutions of its Board of Directors authorizing the redemption
and that such redemption is being made in accordance with this Indenture and
the Securities. The Company shall give such notice at least 30 days but not
more than 60 days before the Redemption Date (unless a shorter notice shall
be satisfactory to the Trustee).
SECTION 9.02. SELECTION OF THE SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the Trustee shall
allocate the total Principal amount of Securities to be redeemed on a pro
rata basis, by lot or by such other method as the Trustee deems fair and
appropriate to the Holders.
The Trustee shall make the selection not more than 60 days but not less
than 30 days before each Redemption Date from Securities outstanding not
previously called for redemption. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the Principal
of the outstanding Securities; provided that redemption is not required to be
in $1,000 integral amounts if the redemption is for all issued and
outstanding Securities. Provisions of this Indenture that apply to
Securities called for redemption shall also apply to portions of Securities
called for redemption. The Trustee shall notify the Company promptly of the
Securities or portions of Securities to be called for redemption.
SECTION 9.03. NOTICE OF REDEMPTION.
At least 30 but not more than 60 days before a Redemption Date, the
Company shall give a notice of redemption to each Holder whose Securities are
to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid;
(3) the name and address of the Paying Agent;
(4) that the Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price and
accrued interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on the Securities called for redemption ceases to
accrue on and after the specified Redemption Date and the only remaining
right of the Holders is to receive payment of the Redemption Price upon
surrender to the Trustee or the Paying Agent of the Securities;
(6) if any Security is being redeemed in part, the portion of
the principal amount (equal to $1,000 or any integral multiple thereof)
of such Security to be redeemed and that, on or after the Redemption
Date, upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion thereof will be issued;
and
(7) the CUSIP number of the Securities, if any, pursuant to
Section 2.13.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense. In such event, the
Company shall provide the Trustee with the information required by clauses
(1), (2), (3) and (7) above.
SECTION 9.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed (after the Trustee has received the
notice provided for in the last paragraph of Section 9.01), the Securities
called for redemption become due and payable on the Redemption Date and at
the Redemption Price and shall cease to bear interest from and after the
Redemption Date (unless the Company shall fail to make payment of the
Redemption Price or accrued interest on the Redemption Date). Upon surrender
to the Paying Agent such Securities shall be paid at the Redemption Price
plus accrued interest, if any, to the Redemption Date but interest
installments whose maturity is on or prior to the Redemption Date will be
payable to the Holder of record at the close of business on the relevant
record dates referred to in the Securities.
SECTION 9.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m. New York City time, on each Redemption Date,
the Company shall deposit with the Trustee or Paying Agent (or if the
Company, or a Subsidiary or an Affiliate of the Company, acts as Paying
Agent, such Paying Agent shall segregate and hold in a separate trust fund
for the sole benefit of the Holders) money, in federal or other immediately
available funds, sufficient to pay the Redemption Price of and accrued
interest on all Securities to be redeemed on that date other than Securities
or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation. Any funds
deposited with the Trustee or the Paying Agent prior to the Redemption Date
shall be held by the Trustee or the Paying Agent in an interest bearing
account.
So long as the Company complies with the preceding paragraph, interest
on the Securities to be redeemed on the applicable Redemption Date shall
cease to accrue and such Securities or portions thereof shall be deemed not
to be entitled to any benefit under this Indenture except to receive payment
of the Redemption Price together with interest accrued thereon to the
Redemption Date. If any Security called for redemption shall not be so paid
upon surrender for redemption because of failure of the Company to comply
with the preceding paragraph, interest will be paid from the Redemption Date
until such Principal is paid on the unpaid Principal and, to the extent
permitted by law, on any interest not paid on such unpaid Principal, in each
case at the rate provided by the Securities. The Paying Agent shall return
to the Company any money not required for that purpose and pay to the Company
any interest earned from the deposit of funds in an interest bearing account
pursuant to the foregoing paragraph.
SECTION 9.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
execute and issue and the Trustee shall authenticate a new Security equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Security agrees, that
indebtedness evidenced by the Securities is subordinated in right of payment,
to the extent and in the manner provided in this Article 10, to the prior
payment in full in cash of all Senior Debt, and that the subordination is for
the benefit of and enforceable by the holders of Senior Debt.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property,
in an assignment for the benefit of creditors or any marshaling of the
Company's assets and liabilities:
(i) holders of Senior Debt shall be first entitled to
receive payment in full in cash or cash equivalents of all
Obligations due in respect of, and included in, such Senior Debt
(including interest after, or which would have accrued but for,
the commencement of any such proceeding at the rate specified in
the applicable Senior Debt, whether or not a claim for such
interest would be allowed) before Holders of the Securities shall
be entitled to receive any payment with respect to the Securities
(except that Holders may receive (A) Permitted Junior Securities
and (B) payments and other distributions made from any discharge
of this Indenture pursuant to Article 7 hereof prior to delivery
of a default notice); and
(ii) until all Obligations with respect to, and included
in, Senior Debt (as provided in clause (i) above) are so paid in
full, any distribution to which Holders would be entitled but for
this Article 10 shall be made to holders of Senior Debt (except
that Holders of Securities may receive (A) Permitted Junior
Securities and (B) payments and other distributions made from any
discharge of this Indenture pursuant to Article 7 hereof prior to
delivery of a default notice), as their interests may appear.
SECTION 10.03. DEFAULT ON SENIOR DEBT.
(a) The Company may not directly or indirectly make any payment or
distribution to the Trustee or any Holder in respect of any Obligations with
respect to the Securities and may not directly or indirectly acquire from the
Trustee or any Holder any Securities for cash or property (other than (A)
Permitted Junior Securities and (B) payments and other distributions made
from any discharge of this Indenture pursuant to Article 7 hereof) until all
Principal and other Obligations with respect to, and included in, the Senior
Debt have been paid in full in cash or cash equivalents if:
(i) a default in the payment of any principal or other
Obligations with respect to, and included in, Senior Debt occurs and is
continuing; or
(ii) a default, other than a payment default, on Senior Debt
occurs and is continuing that then permits holders of the Senior Debt to
accelerate its maturity and the Trustee receives a notice of the default
(a "Payment Blockage Notice") from a Person who may give it pursuant to
Section 10.11 hereof. If the Trustee receives any such Payment Blockage
Notice, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until at least 360 days shall have
elapsed since the effectiveness of the immediately prior Payment
Blockage Notice. No nonpayment default that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the Trustee
shall be, or be made, the basis for a subsequent Payment Blockage Notice
unless such default shall have been waived for a period of not less than
180 days.
(b) The Company may and shall resume payments on and distributions in
respect of the Securities and may acquire them upon the earlier of:
(i) the date upon which the default is cured or waived by
written notice to the Trustee and the Company from the Person or Persons
who gave such Payment Blockage Notice and, in the case of Senior Debt
that has been accelerated, such acceleration has been rescinded, or
(ii) in the case of a default referred to in clause (ii) of
Section 10.03(a) hereof, 179 days pass after notice is received if the
maturity of such Senior Debt has not been accelerated,
if this Article 10 otherwise permits the payment, distribution or acquisition
at the time of such payment or acquisition.
SECTION 10.04. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. If any Senior Debt is outstanding, the Company may not pay the
Securities until five Business Days after the Representative of the Senior
Debt receives notice of such acceleration and, thereafter, may pay the
Securities only if this Article 10 otherwise permits the payment at that
time.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Securities at a time when the Trustee or such
Holder, as applicable, has actual notice that such payment is prohibited this
Article 10, such payment shall be held by the Trustee or such Holder, in
trust for the benefit of, and shall be paid forthwith over and delivered to
the holders of, Senior Debt as their interests may appear or to their
Representative under the indenture or other agreement (if any) pursuant to
which Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to,
and included in, Senior Debt remaining unpaid to the extent necessary to pay
such Obligations in full in accordance with their terms, after giving effect
to any concurrent payment or distribution to or for the holders of Senior
Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of
Holders or the Company or any other Person money or assets to which any
holders of Senior Debt shall be entitled by virtue of this Article 10, except
if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
SECTION 10.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee at the Corporate Trust
Office and the Paying Agent of any facts known to the Company that would
cause a payment of any Obligations with respect to the Securities to violate
this Article 10, but failure to give such notice shall not affect the
subordination of the Securities to the Senior Debt as provided in this
Article 10.
SECTION 10.07. SUBROGATION.
After all Senior Debt is paid in full and until the Securities are paid
in full, Holders of Securities shall be subrogated (equally and ratably with
all other indebtedness pari passu with the Securities) to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt to
the extent that distributions otherwise payable to the Holders of Securities
have been applied to the payment of Senior Debt. A distribution made under
this Article 10 to holders of Senior Debt that otherwise would have been made
to Holders of Securities is not, as between the Company and Holders, a
payment by the Company on the Securities.
SECTION 10.08. RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders of Securities and
holders of Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Company and Holders of Securities,
the obligation of the Company, which is absolute and unconditional, to
pay Principal of and interest on the Securities in accordance with their
terms;
(ii) affect the relative rights of Holders of Securities and
creditors of the Company other than their rights in relation to holders
of Senior Debt; or
(iii) prevent the Trustee or any Holder of Securities from
exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders of Securities.
If the Company fails because of this Article 10 to pay Principal of or
interest on a Security on the due date, the failure is still a Default or
Event of Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED.
No right of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company, any holder of Senior Debt or any Holder or by
the failure of the Company or any Holder to comply with this Indenture or by
modification of the terms of the Senior Debt.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction
or upon any certificate of such Representative or of the liquidating trustee
or agent or other Person making any distribution to the Trustee or to the
Holders of Securities for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Securities, unless the Trustee shall have
received at its Corporate Trust Office at least five Business Days prior to
the date of such payment written notice of facts that would cause the payment
of any Obligations with respect to the Securities to violate this Article 10.
Only the Company, a holder of Senior Debt or a Representative may give the
notice. Nothing in this Article 10 shall impair the claims of, or payments
to, the Trustee under or pursuant to Section 6.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Securities, by the Holder's acceptance thereof,
authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article 10, and appoints the Trustee to act as such Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file
a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 5.09 hereof at least 30 days before the
expiration of the time to file such claim, the Representatives are hereby
authorized to file an appropriate claim for and on behalf of the Holders of
the Securities.
SECTION 10.13. AMENDMENTS.
The provisions of this Article 10 shall not be amended or modified as
against any Senior Debt incurred after the date of this Indenture without the
written consent of the holders of such Senior Debt.
ARTICLE 11
COLLATERAL AND SECURITY
SECTION 11.01. SECURITY AGREEMENT.
The due and punctual payment of the Principal of and interest on the
Securities when and as the same shall be due and payable, and performance of
all other obligations of the Company to the Holders of Securities or the
Trustee under this Indenture and the Securities, according to the terms
hereunder or thereunder, shall be secured as provided in the Security
Agreement which the Company has entered into simultaneously with the
execution of this Indenture. Each Holder of Securities, by its acceptance
thereof, consents and agrees to the terms of the Security Agreement
(including, without limitation, the provisions providing for foreclosure and
release of Collateral) as the same may be in effect or may be amended from
time to time in accordance with its terms and authorizes and directs the
Trustee to enter into the Security Agreement and to perform its obligations
and exercise its rights thereunder in accordance therewith. The Company
shall do or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the provisions of the Security Agreement, to
assure and confirm to the Trustee the security interest in the Collateral
contemplated hereby, by the Security Agreement or any part thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Securities secured hereby, according
to the intent and purposes herein expressed. The Company shall take, or
shall cause its Subsidiaries to take, upon request of the Trustee, any and
all actions reasonably required to cause the Security Agreement to create and
maintain, as security for the Obligations of the Company hereunder, a valid
and enforceable perfected first priority Lien in and on all the Collateral,
in favor of the Trustee for the benefit of the Holders of Securities,
superior and prior to the rights of all third Persons and subject to no other
Liens (other than "Permitted Liens" as defined in the Security Agreement).
SECTION 11.02. RECORDING AND OPINIONS.
The Company shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either (i)
stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, financing
statements or other instruments necessary to make effective the Lien intended
to be created by the Security Agreements or (ii) stating that, in the opinion
of such counsel, no such action is necessary to make such Lien effective.
The Company shall furnish to the Trustee on ---------- in each year
beginning with -----------, 2003, an Opinion of Counsel, dated as of such
date, either (i) (A) stating that, in the opinion of such counsel, action has
been taken with respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance
as is necessary to maintain the Lien of the Security Agreements, (B) stating
that, based on relevant laws as in effect on the date of such Opinion of
Counsel, all financing statements and continuation statements have been
executed and filed that are necessary as of such date and during the
succeeding 12 months fully to preserve and protect, to the extent such
protection and preservation are possible by filing, the rights of the Holders
of Securities and the Trustee hereunder and under the Security Agreements
with respect to the security interests in the Collateral, or (ii) stating
that, in the opinion of such counsel, no such action is necessary to maintain
such Lien and assignment.
The Company shall otherwise comply with the provisions of TIA Section
314(b).
SECTION 11.03. RELEASE OF COLLATERAL.
(a) Except as provided herein or in the Security Agreement, the
Company shall be permitted to possess, use, transfer free from the Lien of
the Security Agreement, abandon or modify the Collateral without any release
from or consent by the Trustee.
(b) The Company shall not make any Asset Sale of Collateral in one or
more transactions unless all Net Available Proceeds from one or more of such
Asset Sales, less any amounts invested within one year of such disposition in
assets related to the business of the Company or committed to be so invested
by the Company pursuant to written agreements within one year following such
disposition, or applied or committed to be applied within such period to
prepayment of Senior Debt or Securities (provided that any commitment to lend
Senior Debt is correspondingly permanently reduced) are applied by the
Company to the extent remaining Net Available Proceeds ("Excess Proceeds")
received from and after the date of this Indenture exceed $20.0 million, to
make an Offer to Purchase outstanding Securities at 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the Purchase
Date. Upon completion of the purchase of Securities in accordance with the
Offer to Purchase, the amount of Excess Proceeds shall be reset at zero.
(c) The Company will mail the Offer for an Offer to Purchase required
pursuant to Section 11.03(b) not more than one year after consummation of the
disposition referred to in Section 11.03(b). The aggregate principal amount
of plus accrued interest on the Securities to be offered to be purchased
pursuant to the Offer to Purchase (the "Purchase Amount") shall equal the
Excess Proceeds available therefor pursuant to Section 11.03(b). Each Holder
shall be entitled to tender all or any portion of the Securities owned by
such Holder pursuant to the Offer to Purchase.
(d) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 11.03, the Company shall deliver to the
Trustee an Officers' Certificate as to (i) the Purchase Amount, (ii) the
allocation of the Net Available Proceeds from the Asset Sale pursuant to
which such Offer is being made, including, if amounts are invested in assets
related to the business, the actual assets acquired and (iii) the compliance
of such allocation with the provisions of Section 11.03(b).
The Company shall perform its obligations specified in the Offer for the
Offer to Purchase. On or prior to the Purchase Date, the Company shall (i)
accept for payment (on a pro rata basis, if necessary, as provided in the
definition of "Offer to Purchase") Securities or portions thereof tendered
pursuant to the Offer, (ii) deposit with the Paying Agent money sufficient to
pay the Purchase Price of all securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee all securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof accepted for payment by the Company. The Paying Agent (or
the Company if so acting) shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Purchase Price, and
the Trustee shall promptly authenticate and mail or deliver to such Holders a
new Security equal in Principal amount to any unpurchased portion of the
Security surrendered. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof.
(e) Notwithstanding the foregoing, this Section 11.03 shall not apply
to any Asset Sale which constitutes a transfer, conveyance, sale, lease or
other disposition of all or substantially all of the Company's Property
within the meaning of Section 4.01.
(f) Any release of Collateral made in compliance with the provisions
of this Section 11.03 shall be deemed for all purposes: (x) not to impair the
security under this Indenture in contravention of the provisions hereof if
and to the extent the Collateral is released pursuant to the terms hereof or
of the Security Agreement and (y) not to constitute in any respect or for any
purpose a breach, default or violation of any term or provision of this
Indenture, or the Security Agreement or such other documents and to the
extent that any such breach, default or violation would otherwise result the
same are hereby waived in all respects. To the extent applicable, the
Company shall cause TIA Section 313(b), relating to reports, and TIA Section
314(d), relating to the release of property or securities from the Lien and
security interest of the Security Agreements and relating to the substitution
therefor of any property or securities to be subjected to the Lien and
security interest of the Security Agreements, to be complied with. Any
certificate or opinion required by TIA Section 314(d) may be made by an
Officer of the Company xcept in cases where TIA Section 314(d) requires that
such certificate or opinion be made by an independent Person, which Person
shall be an independent engineer, appraiser or other expert selected or
approved by the Trustee in the exercise of reasonable care.
(g) (i) Upon the request of the Company (by resolution of its Board of
Directors authorizing the execution thereof) for the release of (x) all or
substantially all of the Collateral or (y) any item or items of Collateral in
a single transaction or series of related transactions having a fair market
value in excess of $5 million from the Liens of the Security Agreement or any
other Liens created under the Indenture or any related documents, together
with the consent to such release from the Holders of 66 2/3% of the aggregate
Principal amount of the Securities then outstanding, presented to the
Trustee, the same shall be deemed to be released from such Liens and the
Trustee, at the expense of the Company, will execute and deliver, within
seven Business Days from the receipt of such request, any instruments,
documents and agreements specified by the Company or any of its subsidiaries
to further evidence, effect and implement the release of all or substantially
all of the Collateral from the Lien of the Security Agreement or any other
Lien created under the Indenture or related documents.
(ii) Upon the request of the Company (by resolution of its Board of
Directors authorizing the execution thereof) for the release of any item or
items of Collateral in a single transaction or a series of related
transactions having a fair market value of $5 million or less, from the Liens
of the Security Agreement or any other Liens created under the Indenture or
any related documents, together with the consent to such release from the
Holders of a majority of the aggregate Principal amount of the Securities
then outstanding, presented to the Trustee, the same shall be deemed released
from such Liens and the Trustee, at the expense of the Company, will execute
and deliver, within seven Business Days from the receipt of such request, any
instruments, documents and agreements specified by the Company or any of its
subsidiaries to further evidence, effect and implement the release of any
such Collateral from the Lien of the Security Agreement or any other Liens
created under the Indenture or the related documents.
(iii) Nothing in this paragraph shall be deemed to require a release
of Collateral that is not otherwise required under this Indenture, or to
require a consent not otherwise required under this Indenture (in particular
and without limitation in connection with the sales of Collateral the
proceeds of which are not required to be applied under paragraph (b) of this
Section 11.03).
SECTION 11.04. CERTIFICATES OF THE COMPANY.
The Company shall furnish to the Trustee, prior to each proposed release
of Collateral pursuant to the Security Agreement, (i) all documents required
by the TIA, including Section 314(d) thereof and (ii) an officer's
certificate and an Opinion of Counsel to the effect that such accompanying
documents constitute all documents required by the TIA, including Section
314(d) thereof. The Trustee may, to the extent permitted by Sections 6.01
and 6.02 hereof, accept as conclusive evidence of compliance with the
foregoing provisions the appropriate statements contained in such documents
and such Opinion of Counsel.
SECTION 11.05. [intentionally omitted.]
SECTION 11.06. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
COLLATERAL AGREEMENTS.
Subject to the provisions of Sections 7.01 and 7.02 hereof, the Trustee
may, in its sole discretion and without the consent of the Holders of
Securities, direct, on behalf of the Holders of Securities, take all actions
it deems necessary or appropriate in order to (a) enforce any of the terms of
the Security Agreement and (b) collect and receive any and all amounts
payable in respect of the Obligations of the Company hereunder. The Trustee
shall have power to institute and maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Collateral by any acts
that may be unlawful or in violation of the Security Agreement or this
Indenture, and such suits and proceedings as the Trustee may deem expedient
to preserve or protect its interests and the interests of the Holders of
Securities in the Collateral (including power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of the Holders of Securities or
of the Trustee).
SECTION 11.07. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
COLLATERAL AGREEMENTS.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Securities distributed under the Security Agreement, and to make
further distributions of such funds to the Holders of Securities according to
the provisions of this Indenture.
SECTION 11.08. TERMINATION OF SECURITY INTEREST.
Upon the earlier of (i) the payment in full of all Obligations of the
Company under this Indenture and the Securities, and (ii) Discharge of this
Indenture or cessation of obligation to comply with certain terms of this
Indenture pursuant to Article 7 hereof, the Trustee shall, at the request of
the Company, as soon as reasonably practicable following receipt of a
certificate prepared by the Company, release the Liens securing the
Obligations under the Securities and this Indenture.
SECTION 11.09. SUBORDINATION AGREEMENT.
The Trustee is authorized and directed to enter into the Subordination
Agreement.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision that is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 12.02. NOTICES.
All notices and communications to the Company or the Trustee shall be in
writing and shall be duly given if delivered in Person or mailed by first
class mail, postage prepaid, to the following addresses or transmitted by the
telecopier and confirmed by overnight courier guaranteeing next day delivery:
The Company's address is:
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: President
The Trustee's address is:
Xxxxx Fargo Bank Minnesota, National Association
Corporate Trust Services
Sixth Street and Marquette Avenue
MAC N9303-120
Xxxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
The Company or the Trustee by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications to a Holder shall be in writing and shall
be mailed by first class mail, postage prepaid, to the Holder's address shown
on the register kept by the Registrar; provided that items required under the
TIA to be sent to Holders in compliance with TIA Section 313(c) shall be
mailed to Holders in compliance with such section. Failure to mail a notice
or a communication to a Holder or any defect in any notice given to a Holder
shall not affect the sufficiency of such notice with respect to other
Holders.
If a notice or communication is delivered or mailed to a Holder in the
manner provided above within the time prescribed, it is duly given, whether
or not the Holder receives it.
If the Company mails a notice or communication to Holders, it shall mail
a copy to the Trustee and each Agent at the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Trustee shall comply with the provisions of TIA Section 312(b). The
Company, any other obligor on the Securities, the Trustee, the Registrar and
any agent of any of them shall have the protection of TIA Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or other obligor on the
Securities to the Trustee to take any action under this Indenture, the
Company or such other obligor shall furnish to the Trustee:
(a) an Officers' Certificate reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent
have been complied with and that such action or inaction is in compliance
with applicable law.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on Officers' Certificates or certificates of public officials
unless such counsel knows, or in the exercise of reasonable care should
know, that the Officers' Certificate or certificate of public official
with respect to such matters is erroneous.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or any day on which banking
institutions in the Borough of Manhattan, City of New York, are not required
to be open. If a payment date is a Legal Holiday at the place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 12.08. NO RECOURSE AGAINST OTHERS.
The Securities and the obligations of the Company under this Indenture
and the Security Agreement are solely obligations of the Company and no past,
present or future officer, director, employee or stockholder, as such, of the
Company or any successor of the Company shall be liable for any failure by
the Company to perform any of its obligations hereunder or pursuant to the
Securities or the Security Agreement.
SECTION 12.09. BENEFITS OF INDENTURE.
Except for the rights of the lenders and/or holders of the Senior Debt
under Article 10, nothing in this Indenture, the Security Agreement or in the
Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 12.10. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One signed
copy is sufficient to prove this Indenture.
SECTION 12.11. GOVERNING LAW.
The internal laws of the State of New York shall govern this Indenture
and the Securities without regard to principles of conflicts of law.
SECTION 12.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.13. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 12.14. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 12.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SIGNATURES
VISKASE COMPANIES, INC.
Dated: , 2002
--------------
By
-------------------------------
Title
-------------------------------
Attest:
(SEAL)
-----------------------------
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
Dated: , 2002
--------------
By
-------------------------------
Title
-------------------------------
Attest:
(SEAL)
-----------------------------
Exhibit A
No. $
--------------------------------- -------------
(Face of Security)
VISKASE COMPANIES, INC.
Incorporated under the laws of the State
of Delaware
8% Senior Subordinated Secured Note Due 2008
VISKASE COMPANIES, INC. promises to pay to -------------- or registered
assigns the principal sum of ------------ Dollars on December 1, 2008 and to
pay interest thereon at the rate of 8% per annum, in the manner and subject
to the terms set forth in provisions appearing on the reverse hereof, which
provisions, in their entirety, shall for all purposes have the same effect as
if set forth at this place.
IN WITNESS WHEREOF, VISKASE COMPANIES, INC. has caused this instrument
to be executed in its corporate name by the manual or facsimile signature of
its President or a Vice President and attested by its Secretary or an
Assistant Secretary.
VISKASE COMPANIES, INC.
By
----------------------------------
Attest: (SEAL)
-----------------------------
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 8% Senior Subordinated Secured Notes Due 2008 issued
under the Indenture mentioned in this Note.
Dated:
---------------------------
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By
---------------------------------
Authorized Signatory
(Back of Security)
VISKASE COMPANIES, INC.
8% Senior Subordinated Secured Note Due 2008
1. Interest and Principal Payments. VISKASE COMPANIES, INC., a
Delaware corporation (the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The
Company shall pay interest on the dates (each, an "Interest Payment Date")
and in the manner described in the second paragraph of this Section 1 of this
Note. Interest on the Securities shall accrue from the most recent date as
of which interest has been paid or, if no interest has been paid, from
December 1, 2001. Interest shall be computed on the basis of a 360-day year
of twelve 30-day months.
Interest will begin to accrue on the Notes and be payable on the dates
and in the manner as follows:
(i) there shall be an Interest Payment Date as of June 30 in
each of years 2003 and 2004 and December 31 in each of years 2002, 2003
and 2004 payable on such Interest Payment Date; provided that the
Company may pay interest on the Notes through the issuance of additional
Notes (in the form of Exhibit A attached to the Indenture) in a
principal amount equal to the interest otherwise payable in cash ("PIK
Notes");
(ii) there shall be an Interest Payment Date on March 31, 2006
with respect to interest accrued through December 31, 2005. If the
Company has positive Consolidated Cash Flow (as defined in the
Indenture) for the twelve months ending December 31, 2005, the Company
shall pay interest on the Notes in cash; provided, however, that, if the
Consolidated Cash Flow for such Interest Payment Date is less than the
aggregate interest payments to be paid on all Notes (including PIK
Notes) on such Interest Payment Date, the Company shall pay an aggregate
amount in cash equal to the Consolidated Cash Flow to the Holders of
Notes (including PIK Notes) with each Holder of a Note or Notes
receiving a cash interest payment equal to the Consolidated Cash Flow
multiplied by a fraction the numerator of which is the Principal amount
of the Note or Notes (less any Principal payment previously made with
respect to such Note or Notes) held by such Holder and the denominator
of which is the Principal amount of all Notes outstanding (less any
Principal payment previously made with respect to such Notes); provided
further that interest not paid in cash shall be paid through the
issuance of PIK Notes in a Principal amount equal to the interest not
otherwise paid in cash;
(iii) there shall be Interest Payment Dates on June 15, 2006,
September 15, 2006, December 15, 2006 and March 31, 2007 with respect to
interest accrued through March 31, 2006, June 30, 2006, September 30,
2006 and December 31, 2006, respectively. If the Company has positive
Consolidated Cash Flow for the twelve consecutive months ending on the
last day of the fiscal quarter immediately preceding the fiscal quarter
in which the Interest Payment Date occurs, the Company shall pay
interest accrued in respect of such fiscal quarter on the Notes in cash;
provided, however, that, if the relevant 12-month Consolidated Cash Flow
for such Interest Payment Date is less than the aggregate interest
payments to be paid on all Notes (including PIK Notes) on such Interest
Payment Date, the Company shall pay an aggregate amount in cash equal to
the Consolidated Cash Flow to the Holders of Notes (including PIK Notes)
with each Holder of a Note or Notes receiving a cash interest payment
equal to the Consolidated Cash Flow multiplied by a fraction the
numerator of which is the Principal amount of the Note or Notes (less
any Principal payment previously made with respect to such Note or
Notes) held by such Holder and the denominator of which is the Principal
amount of all Notes outstanding (less any Principal payment previously
made with respect to such Notes); provided further that, any interest is
not paid in cash, such unpaid interest shall be paid through the
issuance of PIK Notes in a principal amount equal to the interest not
otherwise paid in cash;
(iv) there shall be an Interest Payment Date as of June 30 and
December 31, 2007, and June 30 and December 1, 2008 payable on such
Interest Payment Date, and the Company shall pay interest on the Notes
in cash.
(c) The Company shall pay the Principal amount of this Security
on December 1, 2008. The Company shall pay interest on overdue Principal at
the rate of 8% per annum and interest on overdue installments of interest, to
the extent lawful, at the same rate.
2. Method of Payment. The Company shall pay interest on the Securities
(except default interest) to the Persons who are registered Holders of
Securities at the close of business on the regular record date, which shall
be the 15th day immediately preceding the interest payment date even though
Securities are cancelled after the record date and on or before the interest
payment date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such overdue interest (to the extent lawful),
shall forthwith cease to be payable to the Holder on such regular record date
and shall be payable to the Person in whose name this Security is registered
at the close of business on a special record date for the payment of such
interest on overdue interest to be fixed by the Company, notice of which
shall be given to Holders not less than 15 days prior to such special record
date. Except for interest paid in the form of PIK Notes, the Company shall
pay Principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However,
the Company may pay Principal and cash interest by check payable in such
money. Payment of Principal and interest shall be made at the office of the
Paying Agent. Holders must surrender Securities to a Paying Agent to collect
Principal payments. However, the Company may mail an interest check to a
Holder's address then appearing in the register of Securities maintained by
the Registrar pursuant to the Indenture.
3. Paying Agent and Registrar. Initially, Xxxxx Fargo Bank Minnesota,
National Association (the "Trustee") will act as Paying Agent and Registrar.
The Company may change any Paying Agent, Registrar or co-Registrar without
notice to any Holder. The Company or a Subsidiary of the Company or any
Affiliate of any of them may act in any such capacity.
4. Indenture, Subordination and Security Agreement. The Company has
issued the Securities under an Indenture dated as of -----, ----, 2002 (the
"Indenture") between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 ("TIA") as in
effect on the date of the Indenture. The Securities are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement
of such terms. The Securities are obligations of the Company limited to
$60,000,000 in aggregate principal amount (as such number may be increased by
the aggregate principal amount of any PIK Notes). The Notes are subordinated
to the Senior Debt (as provided in the Indenture). The Notes are secured by
the Security Agreement referred to in the Indenture. Unless otherwise defined
herein, all capitalized terms shall have the meanings assigned to them in the
Indenture.
5. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and integral multiples
thereof, except for the PIK Notes and Fractional Principal Amount of Exchange
Securities which shall be issued in any whole dollar amount, rounded to the
nearest dollar. A Holder may register, transfer or exchange Securities as
provided in the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Security or
portion of a Security selected for redemption. Also, it need not exchange or
register the transfer of any Securities for a period of 15 days before a
selection of Securities to be redeemed.
6. Optional Redemption. The Company may optionally redeem the
Securities as a whole or in part from time to time at their principal amount,
in each case together with accrued and unpaid interest thereon, if any, to
the Redemption Date.
Notice of redemption will be mailed by first class mail at least 30 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed, at his registered address as it shall appear upon
the register of Securities maintained by the Registrar. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. On and after the Redemption Date interest ceases to
accrue on Securities or portions thereof called for redemption.
If less than all the Securities are to be redeemed, the Trustee shall
select the particular Securities to be redeemed on a pro rata basis or by
lot, or by such other method as the Trustee deems fair and appropriate to the
Holders at the discretion of the Trustee.
7. Persons Deemed Owners. The Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name the Security is
registered with the Registrar as its owner for all purposes.
8. Amendments, Supplements and Waivers. Subject to certain exceptions
requiring the consent of each Holder affected, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of
at least a majority in aggregate Principal amount of the then outstanding
Securities and any existing default may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Securities. Without notice to or the consent of any Holder, the Indenture or
the Securities may be amended to cure any ambiguity, defect or inconsistency,
provide for assumption of Company obligations to Holders, provide for
uncertificated Securities, maintain qualification of the Indenture under the
TIA or make any change that does not materially adversely affect the rights
of any Holder.
9. Defaults and Remedies. The Securities have the Events of Default
set forth in Section 5.01 of the Indenture, which include, among others,
default for 30 days or more in payment of interest on the Securities and
default in payment of Principal when due on the Securities. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Securities may declare all the Securities to
be due and payable immediately, except that in the case of an Event of
Default arising from certain events of bankruptcy, insolvency or
reorganization relating to the Company, all outstanding Securities shall
become due and payable immediately without further action or notice. Holders
of a majority in aggregate Principal amount of the then outstanding
Securities by notice to the Trustee may rescind an acceleration and its
consequences provided that all existing Events of Default have been cured or
waived to the extent required in the Indenture and certain other conditions
specified in the Indenture are satisfied. Holders may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee
may require indemnity satisfactory to it before it enforces the Indenture or
the Securities. Subject to certain limitations, Holders of a majority in
aggregate Principal amount of the then outstanding Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in payment of
Principal or interest) if it determines that withholding notice is in their
interest.
10. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company, its Subsidiaries or their
Affiliates, and may otherwise deal with the Company, its Subsidiaries or
their Affiliates, as if it were not Trustee.
11. 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 Securities, the Indenture or the
Security Agreement or for any claim based on, in respect of or by reason of
such obligations or their creation. Each Holder by accepting a Security
waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Securities.
12. Unclaimed Money. If money for the payment of Principal of or
interest on any Security remains unclaimed for two years after the date on
which such payment shall have come due, the Trustee or Paying Agent will pay
the money back to the Company at the Company's written request. After that,
Holders entitled to this money must look to the Company for payment, unless a
law governing abandoned property designates another Person.
13. Discharge. Subject to the terms of the Indenture, the Indenture
will be discharged and cancelled upon the payment of all Securities. In
addition, at the option of the Company and upon satisfaction of certain
conditions specified in the Indenture, either (a) the Company shall be deemed
to have paid and discharged its obligations with respect to the Securities or
(b) the Company shall not be required to comply with certain covenants
contained in the Indenture or otherwise applicable to the Securities, in each
case upon the deposit by the Company with the Trustee in trust for the
Holders of the Securities of an amount of funds or obligations issued or
guaranteed by the United States of America sufficient to pay and discharge
upon the stated maturity thereof the entire indebtedness evidenced by the
Securities, all as provided in the Indenture.
14. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
15. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN CON (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and UNIF GIFT
MIN ACT (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture, which has in it the text of this Security in
larger type. Requests may be made to Viskase Companies, Inc., 000
Xxxxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000 Attention: Corporate
Secretary.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
-----------------------------------------------------------------------------
(Insert assignee's soc. Sec. or tax I.D. no.)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ------------------------ agent to transfer this
Security on the books of the Company. The agent may substitute another to
act for him.
Date: Your signature
------------------------ -------------------------
(Sign exactly as your name appears on the
other side of this Security)
Signature Guaranteed
By
------------------------------------
EXHIBIT B
[Insert Security Agreement]
