-------------------------------------------------------------------
XXXXXX RESOURCES, INC.,
as Issuer
AND
CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
as Trustee
INDENTURE
Dated as of December 1, 2000
Relating to the
12% SINKING FUND BONDS DUE DECEMBER 31, 2007
--------------------------------------------------------------------
INDENTURE, dated as of December 1, 2000 (herein, as amended or supplemented
from time to time as permitted hereby, called this "Indenture"), between XXXXXX
RESOURCES, INC., a corporation organized and existing under the laws of the
State of New York (herein, together with its permitted successors and assigns,
called the "Issuer"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as trustee
(herein, together with its permitted successors in the trusts hereunder, called
the "Trustee").
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for bonds consisting of its 12% Sinking Fund Bonds due December 31,
2007 (the "Bonds"), issuable as provided in this Indenture. All covenants and
agreements made by the Issuer herein are for the benefit and security of the
holders of the Bonds. The Issuer is entering into this Indenture, and the
Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
All things necessary to make this Indenture a valid and binding agreement
of the Issuer in accordance with its terms have been done.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. General Definitions.
Except as otherwise specified or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Indenture, and the definitions of such terms are applicable to the singular
as well as to the plural forms of such terms and to the masculine as well as the
feminine and neuter genders of such terms. Whenever reference is made herein to
an Event of Default necessitating or involving action by the Trustee such
reference shall be construed to refer only to an Event of Default of which the
Trustee is deemed to have notice or actual knowledge.
All references in this instrument to designated "Articles," "Sections,"
"Subsections" and other subdivisions are to the designated Articles, Sections,
Subsections and other subdivisions of this instrument as originally executed.
The words "herein, "hereof," "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section,
Subsection or other subdivision.
"Accountants": A Person engaged in the practice of accounting who is a
certified public accountant of recognized national reputation and who (except
when this Indenture provides that an Accountant must be Independent) may be
employed by or affiliated with the Issuer, or an Affiliate of the Issuer.
"Act" and "Acts of Bondholders": With respect to any Bondholder, the
meaning specified in Section 17.03.
"Act of Bankruptcy": The filing of a voluntary or involuntary petition in
bankruptcy under the Bankruptcy Code or the commencement of a proceeding under
any other applicable law now or hereafter in effect concerning insolvency,
reorganization or bankruptcy by or against a debtor, provided, however, that any
such involuntary insolvency proceeding against such debtor stall not constitute
an Act of Bankruptcy if it has been dismissed within sixty (60) days following
the commencement thereof.
"Administrative Expenses": The fees and expenses of the Trustee and its
agents, accountants and legal counsel as contemplated hereunder.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control", when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and "common
control" have meanings correlative to the foregoing.
"Agent": Any Bond Registrar, paying agent or authenticating agent.
"Aggregate Outstanding Principal Amount": The principal amount of all
Outstanding Bonds at the date of determination.
"Authorized Issuer Representative": Each person at the time designated to
act on behalf of the Issuer by written certificate furnished to the Trustee
containing the specimen signature of such person.
"Authorized Officer": Any officer of the Issuer who is authorized to act
for the Issuer in matters relating to, and binding upon the Issuer, and whose
name appears on a list of such authorized officers furnished by the Issuer to
the Trustee, as such list may be amended or supplemented from time to time in
writing and furnished to the Trustee.
"Bankruptcy Code": The United States Bankruptcy Code, 11 U.S.C. Sections
101 et seq., as amended or supplemented from time to time.
2
"Board of Directors": The Board of Directors of the Issuer, or any
committee of that Board duly authorized under applicable law to act on behalf of
that Board, with respect to any matters arising under the Indenture.
"Board Resolution": A copy of a resolution certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Trustee.
"Bond Interest Rate": With respect to the Bonds, the rate of twelve percent
(12%) simple interest per annum.
"Bond Purchase Agreement": The subscription agreement or agreements dated
the Closing Date, between the Issuer and the Purchasers with respect to the
purchase of the Bonds.
"Bond Register" and "Bond Registrar": The respective meanings specified in
Section 2.04.
"Bondholder" or "Holder": The Person in whose name a Bond is registered on
the Bond Register.
"Bonds": The Bonds authorized by, and authenticated and delivered under,
this Indenture.
"Business Day": A day that is not a Saturday, Sunday, holiday or other day
on which commercial banking institutions or trust institutions in the city and
state of New York are authorized or obligated by law or required by executive
order or government decree to be closed.
"Closing Date": The date on which the Bonds are first executed,
authenticated and delivered to the Issuer or upon its order.
"Code": The Internal Revenue Code of 1986 and regulations thereunder, as
now or hereafter amended.
"Collateral": Cash plus those zero-coupon United States Treasury debt
obligations maturing on or before the stated Maturity of the Bonds, purchased by
the Trustee, pursuant to Section 3.02 of the Indenture for purposes of securing
repayment of principal of the Bonds, together with all substitutes therefor, and
all of the Funds, cash and proceeds held by the Trustee from time to time
hereunder (including amounts deposited with the Trustee on the Closing Date) and
all other property, tangible or intangible, in which the Issuer hereby grants
the Trustee a security interest hereunder.
3
"Collateral Purchase Sinking Fund": As defined in Section 6.06.
"Common Stock": The Common Stock, $.001 par value, of the Issuer.
"Conversion Shares" or "Conversion Stock": Shares of Common Stock issuable
upon conversion of the Bonds pursuant to Article IX hereof.
"Corporate Trust Office": The office of the Trustee located in New York
City at which at any particular time its corporate trust business shall be
administered and which at the date of execution of this Indenture is located at
0 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Costs of Issuance": All costs incurred in connection with the borrowing
evidenced by the issuance of the Bonds, including (but not limited to): (1)
counsel fees and expenses (including Issuer's counsel and special counsel and
Trustee's counsel as well as any other specialized counsel fees incurred in
connection with the borrowing); (2) rating agent's fees, if any; (3) Trustee
fees and expenses incurred in connection with the borrowing; (4) accountant's
fees related to the issuance of the Bonds, if any; (5) printing costs for the
Bonds and offering materials; and (6) any other expenses and charges reasonably
related to or required to be paid in connection with the issuance of the Bonds.
"Costs of Issuance Fund": The Fund established from which the Costs of
Issuance will be paid.
"Co-Trustee": Any Person appointed as a co-trustee pursuant to this
Indenture.
"Date of Execution": The actual date of execution of this Indenture by the
Issuer and the Trustee as indicated by their respective acknowledgments hereto
annexed, and if the Issuer and the Trustee shall have executed this Indenture at
different dates, the later date.
"Debt Service Requirement": The dollar amount of principal and/or interest
due to the Bondholders on the next scheduled Payment Date.
"Default": Any event which is, or after notice or passage of time would be,
an Event of Default.
"Eligible Institution": A member of a registered national securities
exchange or the National Association of Securities Dealers, Inc., a commercial
bank or trust company or a participant in a medallion program acceptable to the
Trustee.
"Eligible Investments": Any one or more of the following obligations or
securities:
4
(i) non-callable direct obligations of, and obligations fully
guaranteed by, the United States of America, GNMA or any agency or
instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America
having a stated maturity of no more than one year;
(ii) demand and time deposits in, certificates of deposit of, and
bankers' acceptances issued by, any depository institution or trust company
(including the Trustee or any agent of the Trustee, acting in their
respective commercial capacities) incorporated under the laws of the United
States of America, or any state or the District of Columbia and subject to
examination and supervision of a federal or state banking authority, so
long as (a) amounts so invested are fully insured by the FDIC and are not
required for use hereunder for at least seven (7) days after the stated
maturity date of such investment or (b) at the time of such investment or
contractual commitment providing for such investment, the commercial paper
or other short term debt obligations of such depository institution or
trust company (or, in the case of a depository institution which a
principal subsidiary of a holding company, the commercial paper or other
short term debt obligations of such holding company) have the highest
credit rating then available from Standard & Poor's, Xxxxx'x, Xxxx & Xxxxxx
or Fitch Investors Service;
(iii) commercial paper having the highest short-term credit ratings
from Standard & Poor's, Xxxxx'x, Xxxx & Xxxxxx or Fitch Investors Service
at the time of such investment; and
(iv) a guaranteed investment contract issued by any insurance company
or other corporation which has the highest long-term credit rating from
Standard & Poor's, Xxxxx'x, Duff & Xxxxxx or Fitch Investors Service.
provided that, at all times, investment of trust funds shall conform to the
requirements of Article V hereof.
"Event of Default": The meaning specified in Section 14.01.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"Fund(s)": The Collateral Purchase Fund, Debt Service Fund, the
Administrative Expenses Fund, the Costs of Issuance Fund and any other
accounts maintained by the Trustee.
"GNMA": The Government National Mortgage Association or any successor
thereto.
"Holder": The Person in whose name a Bond is registered on the Bond
Register.
5
"Indenture" or "this Indenture": This instrument as originally executed
and, if from time to time supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
as so supplemented or amended.
"Independent": When used with respect to any specified Person means such a
Person who (1) is in fact independent of the Issuer, any Affiliate of the Issuer
or any other obligor upon the Bonds, (2) does not have any direct financial
interest or any material indirect financial interest in the Issuer or in any
such other obligor or in an affiliate of the Issuer or such other obligor, and
(3) is not connected with the Issuer or any such other obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by an Issuer Order and acceptable to the Trustee and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof.
"Interest Payment Date": Any Payment Date whereon interest on the Bonds is
due, with the first payment date being January 1, 2001.
"Investment Earnings": Any interest or other earnings on all or part of the
Trust Estate.
"Issuer": Xxxxxx Resources, Inc., a corporation organized and existing
under the laws of the State of New York, and its successors and assigns.
"Issuer Order" and "Issuer Request": A written order or request signed in
the name of the Issuer by an Authorized Officer.
"Maturity": With respect to any Bond, the date on which the entire unpaid
principal amount of such Bond becomes due and payable as therein or herein
provided, whether at the Stated Maturity date which is December 31, 2007, or by
acceleration upon declaration of an Event of Default.
"Notice of Redemption": As defined in Section 8.04.
"Officers' Certificate": A certificate signed by two (2) Authorized
Officers of the Issuer and delivered to the Trustee. Unless otherwise specified,
any reference in this Indenture to an Officers' Certificate shall be to an
Officers' Certificate of the Issuer.
"Opinion of Counsel": A written opinion of legal counsel and who may,
except as otherwise expressly provided in this Indenture, be Issuer's regular
legal counsel or in-house counsel and who shall be reasonably acceptable to the
Trustee.
6
"Original Aggregate Outstanding Principal Amount": The principal amount of
Bonds delivered by the Issuer and authenticated by the Trustee prior to any
Conversion or Redemption of any Bond.
"Outstanding Bond(s)": As of any given date, all Bonds theretofore
authenticated and delivered under this Indenture except:
(i) Bonds cancelled at or prior to such date or delivered to the
Trustee on or prior to such date for cancellation;
(ii) Bonds or portions thereof for whose payment or redemption money
in the necessary amount has been deposited with the Trustee in trust for
the Holders of such Bonds; provided, however, that if such Bonds are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision for such notice, satisfactory to the Trustee, has
been made;
(iii) Bonds or portions thereof which have been converted pursuant to
Article IX hereof;
(iv) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Trustee is presented that any such Bonds are held by a
holder in due course; and
(v) Bonds alleged to have been destroyed, lost or stolen for which
replacement Bonds have been issued as provided for in Section 2.06,
provided, however, that in determining whether the Holders of the requisite
Aggregate Outstanding Principal Amount of Bonds have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Bonds owned by
the Issuer, any other obligor upon the Bonds or any Affiliate of the Issuer or
such other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, or waiver, only
Bonds which are listed on the Bond Register as being owned by such a Person
shall be so disregarded. As to any Bond, the Person in whose name the same shall
be registered on the Bond Register shall be deemed and regarded as the absolute
owner thereof for all purposes.
"Payment Date": The first day of each month following issuance of the
Bonds, or if any such day is not a Business Day, the next succeeding Business
Day. The first Payment Date shall be Janaury 1, 2001. The final Payment Date
shall be the respective Maturity Date.
7
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof or other legal entity as in the context may be appropriate.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchasers": The purchaser or purchasers of the Bonds from the Issuer
pursuant to the Bond Purchase Agreement.
"Record Date": The fifteenth of the month immediately preceding the month
of the related Payment Date. A date specified as a date on which the Holders of
Bonds entitled to receive a payment of principal or interest (or notice of a
payment in full of principal) on the succeeding Payment Date are determined.
"Redemption": Any early payment of the principal amount of any Bond
pursuant to Article VIII hereof.
"Redemption Date": With respect to any date specified for payment of the
Redemption Price in accordance with Section 8.01 hereof.
"Redemption Price: An amount equal to initially one hundred and five
percent (105%) of the outstanding principal amount of the Bonds being redeemed,
with the price declining ratably in accordance with Section 8.01, plus accrued
interest thereon to the Redemption Date.
"Responsible Officer": With respect to the Trustee, the chairman of the
board of directors, the president, a vice president, an assistant vice
president, an assistant secretary or an assistant treasurer in the Corporate
Trust Office of the Trustee.
"Series": A separate series of Bonds issued pursuant to this Indenture.
"State": The State of New York.
"Stated Maturity": With respect to the entire unpaid principal amount of
any Bond, the date specified in such Bond as the fixed date on which the entire
remaining principal balance, if any, of the principal of such Bond is due and
payable, which is December 31, 2007.
"Supplement": A supplemental indenture in accordance with Article XV of the
Indenture.
8
"Trust Estate": All money, instruments and other property subject or
intended to be subject to the lien of this Indenture for the benefit of the
Bonds as of any particular time, including all proceeds thereof.
"Trust Indenture Act" or "TIA": The Trust Indenture Act of 1939, as
amended.
"Trustee": Continental Stock Transfer & Trust Company or its successor in
interest, or any successor trustee appointed as herein provided.
"UCC": The Uniform Commercial Code as in effect in the applicable
jurisdiction.
ARTICLE II
THE BONDS
Section 2.01. Issuance of the Bonds.
(a) No Bonds may be issued under the provisions of this Indenture except in
accordance with this Article II as supplemented. There is hereby authorized and
created under this Indenture an issue of Bonds which are designated "Xxxxxx
Resources, Inc., 12% Sinking Fund Bonds due December 31, 2007" with respect to
the Bonds.
(b) The Bonds shall be in substantially the form set forth in Exhibit A,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may, consistent herewith, be determined by the officers of the Issuer
executing such Bonds, as evidenced by their execution thereof. Any portion of
the text of any Bond may be set forth on the reverse thereof with an appropriate
reference on the face of the Bond.
Section 2.02. Denominations and Terms.
(a) Except as otherwise provided herein, all Bonds which may be authorized
and issued hereunder shall be limited to Twenty Million Dollars ($20,000,000) in
aggregate principal amount. The Bonds shall be issued as typewritten or printed
fully registered Bonds in initial minimum denominations of five thousand dollars
($5,000) and any greater denomination shall be an integral multiple of five
thousand dollars ($5,000). Subsequent to their initial issuance, the Bonds shall
be authorized to be issued in denominations of at least one hundred dollars
($100).
9
Section 2.03. Interest and Principal.
(a) Interest shall accrue on the Bonds at the Bond Interest Rate from
December 1, 2000 until paid. Interest on the Bonds shall be payable on each
Payment Date and shall be computed on the basis of a three hundred sixty
(360)-day year on the Aggregate Outstanding Principal Amount of the Bonds on the
Record Date immediately preceding such Payment Date. Notwithstanding anything
herein to the contrary, the Bond Interest Rate on the Aggregate Outstanding
Principal Amount of the Bonds shall not exceed the maximum rate of interest
which may be charged to, or collected from, the Issuer thereof pursuant to the
applicable provisions of the federal or state law .
(b) The principal of each Bond shall be payable no later than the Stated
Maturity thereof unless the unpaid principal of such Bond becomes due and
payable at an earlier date upon acceleration following an Event of Default,
Redemption or as otherwise provided herein.
(c) All Bonds issued under this Indenture shall be in all respects equally
and ratably entitled to the benefits hereof without preference, priority or
distinction on account of the actual time or times of delivery, all in
accordance with the terms and provisions of this Indenture.
(d) Payments of principal, and interest due on a Bond on any Payment Date
shall be paid to the Holder of such Bond on the applicable Record Date
immediately preceding such Payment Date. The Trustee will make payments of
principal of, and interest on the Bonds by checks mailed on the Payment Date to
the Bondholders listed in the Bond Register.
(e) Notwithstanding any of the foregoing provisions with respect to
payments of principal of, premium, if any, and interest on the Bonds, if the
Bonds have become or have been declared due and payable upon acceleration
following an Event of Default and such acceleration of maturity and its
consequences have not been rescinded and annulled then payments of principal of,
premium, if any, and interest on the Bonds shall be made in accordance with
Article XIV.
Section 2.04. Registration, Registration of Transfer and Exchange.
(a) The Issuer shall cause books for the registration and transfer of the
Bonds (the "Bond Register") to be kept at the Corporate Trust Office and hereby
appoints the Trustee as its registrar and transfer agent ("Bond Registrar") to
keep such books and to make such registrations and transfers under such
reasonable regulations as the Trustee may prescribe.
(b) Upon surrender for registration of transfer of any Bond at the
Corporate Trust Office, the Issuer shall execute and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, a new fully registered Bond or Bonds of authorized denominations in
the aggregate principal amount which the registered owner is entitled to
receive. All Bonds delivered and exchanged shall be dated so that neither gain
10
nor loss in interest shall result from the transfer or exchange. All Bonds
presented for transfer, exchange, registration, Redemption or payment shall be
duly endorsed or be accompanied by a written instrument or instruments of
transfer or authorization for exchange, in form satisfactory to the Issuer and
the Trustee, duly executed by the Holder or by his attorney, duly authorized in
writing which signature shall be guaranteed by an Eligible Institution and shall
be accompanied by such documents as the Trustee may require.
(c) The Trustee shall require payment by the Holder or its transferee of a
sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection with any registration, registration of transfer or
exchange. Such charges and expenses shall be paid before any such new Bond shall
be delivered. All Bonds issued upon any registration of transfer or exchange
shall be valid obligations of the Issuer, evidencing the same current principal
amount as the Bond surrendered, shall be secured by this Indenture and shall be
entitled to all of the security and benefit hereof to the same extent as the
Bonds surrendered upon such registration of transfer or exchange.
(d) No transfer of a Bond shall be made unless such transfer is exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act"), and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is to be made, the Trustee
or the Issuer may require (i) an Opinion of Counsel (which may be rendered by
salaried counsel employed by the Bondholder or the prospective transferee or an
Affiliate thereof) in form and substance reasonably acceptable to the Trustee
and the Issuer to the effect that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, and that
such transfer is being made pursuant to said Act and laws, which Opinion of
Counsel shall not be an expense of the Trustee or the Issuer, and (ii) that the
transferee shall execute an investment letter in form and substance reasonably
acceptable to the Issuer certifying to the Issuer the facts surrounding such
transfer, which investment letter shall not be an expense of the Trustee or the
Issuer. The Holder of a Bond by the acceptance of such Bond pursuant to a
transfer does thereby agree to indemnify the Trustee and the Issuer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Section 2.05. Execution, Authentication and Delivery.
(a) The Bonds shall be executed on behalf of the Issuer by an Authorized
Officer under its corporate seal, which may be in facsimile form and may be
imprinted or otherwise reproduced thereon, and attested by a separate Authorized
Officer. The signature of any Authorized Officer on the Bonds may be manual or
facsimile. Bonds bearing the manual or facsimile signature of individuals who
were at the time of execution of the Bonds Authorized Officers of the Issuer,
and identified as an Authorized Officer hereunder, shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to be
authorized at the date of the authentication and delivery of such Bonds or did
not hold such offices at the date of such Bonds. The Bonds shall be dated as of
the date of authentication.
11
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Bonds executed by the Issuer to the
Trustee for authentication; and the Trustee shall authenticate and deliver such
Bonds as provided in this Indenture and not otherwise.
(c) No Bond shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Bond a
certificate of authentication, substantially in the form set forth in Exhibit A,
with such appropriate information included in such form, executed by the Trustee
by the manual signature of a natural person authorized by the Trustee to execute
such certificate, and such certificate upon any Bond shall be conclusive, and
the only evidence, that such Bond has been duly authenticated and delivered
hereunder.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Bonds.
(a) If (i) any mutilated Bond is surrendered to the Trustee, or the Issuer
and the Trustee receives evidence to their satisfaction of the destruction, loss
or theft of any Bond, and (ii) there is delivered to the Issuer and the Trustee
such security and indemnity as may be reasonably required by each of them to
hold each of them harmless (including a lost instrument bond), then, in the
absence of written notice to the Issuer or the Trustee that such Bond has been
acquired by a bona fide purchaser, the Issuer shall execute and, upon its
request, the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Bond, a new Bond of like tenor
and principal amount, bearing a number not contemporaneously outstanding;
provided, however, that if any such mutilated, destroyed, lost or stolen Bond
shall have become or shall be about to become due and payable, then, instead of
issuing a new Bond, the Issuer may pay such Bond without surrender thereof,
except that any mutilated Bond shall be surrendered. If, after the delivery of
such new Bond or payment of a destroyed, lost or stolen Bond pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original Bond in
lieu of which such new Bond was issued presents for payment such original Bond,
the Issuer, and the Trustee shall be entitled to recover such new Bond (or such
payment) from the Person to whom it was delivered or any Person taking such new
Bond from such Person, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expenses incurred by the Issuer and the Trustee in
connection therewith.
(b) Upon the issuance of any new Bond under this Section, the Issuer or the
Trustee may require the payment by the Holder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
(c) Every new Bond issued pursuant to this Section 2.06 in lieu of any
mutilated, destroyed, lost or stolen Bond shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
12
destroyed, lost or stolen Bond shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Bonds duly issued hereunder.
(d) The provisions of this Section 2.06 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Bonds.
Section 2.07. Cancellation and Destruction of Surrendered Bonds.
All Bonds surrendered for payment, registration of transfer or exchange
shall, if surrendered to any Person other than the Bond Registrar, be delivered
to the Bond Registrar and shall be promptly cancelled by it. The Issuer may at
any time deliver to the Bond Registrar for cancellation any Bond previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the
Bond Registrar. No Bonds shall be authenticated in lieu of or in exchange for
any Bonds cancelled as provided in this Section, except as expressly permitted
by this Indenture. The Bond Registrar is hereby directed to destroy all
cancelled Bonds unless the Issuer shall direct otherwise by an Issuer Order. The
Trustee shall deliver to the Issuer a certificate of destruction in respect to
all Bonds so destroyed.
Section 2.08. Home Office Payment Agreements.
Notwithstanding any term of this Indenture or of any Bonds to the contrary,
the Trustee, if requested, by prior written instructions, shall be obligated to
enter into an agreement with any Holder of Bonds which is an institutional
investor, and may enter into an agreement with any other Holder, providing for
payment to such Holder of the principal of and interest on, the Bonds or any
part thereof at a place within the continental United States other than the
place specified in such Bonds as a place for such payment, and including by bank
wire transfer of Federal or other immediately available funds, except that the
final payment of interest on and principal of the Bonds upon the Maturity Date
shall only be made against surrender of the Bonds as set forth in this
Indenture.
Section 2.09. Persons Deemed Owners.
Prior to due presentment for registration of transfer or exchange of any
Bond, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name such Bond is registered on the Bond Register as
the owner of such Bond (a) on the applicable Record Date for the purpose of
receiving payments of the principal of and interest on such Bond and (b) for all
other purposes whatsoever, whether or not such Bond is overdue, and neither the
Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected
by notice to the contrary.
13
Section 2.10. Bonds Not Presented For Payment.
In the event any Bonds shall not be presented for payment when the final
principal repayment thereof becomes due, whether at Maturity, or upon the
acceleration of Maturity, if monies sufficient to pay such Bonds are held by the
Issuer, the Issuer shall deliver such funds to the Trustee who will segregate
and hold such monies in trust, and the Holders of such Bonds shall, except as
provided in the following paragraph, thereafter be restricted exclusively to
such funds for the satisfaction of any claim of whatever nature on their part
under this Indenture or relating to said Bonds.
Any money deposited with the Trustee or any paying agent in trust for the
payment of the principal of or interest on any Bond and remaining unclaimed for
one (1) year after such principal or interest has become due and payable shall
be paid to the Issuer; and the Holder of such Bond shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and all
liability of the Trustee or such paying agent with respect to such trust money
(but only to the extent of the amounts so paid to the Issuer), shall thereupon
cease; provided, however, that no such release of payment shall be made unless
the Trustee or such paying agent, before being required to make any such release
of payment, may at the expense of the Issuer cause to be published once, in The
Wall Street Journal, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30) days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer.
Section 2.11 Priority of Bonds.
Subject to the priority rights of the Trustee , the rights of the Holders
to receive the principal sum or any part thereof, and to receive the interest
due on the Bonds is and shall remain equal in priority to the payment of the
principal of and interest on (i) all future obligations and guarantees of the
Issuer for money borrowed from any bank, trust company, insurance company or
other financial institution engaged in the business of lending money, for which
the Issuer is at the time of determination responsible or liable as obligor or
guarantor, (ii) all future obligations of the Issuer secured by a lien,
mortgage, pledge or other encumbrance against real or personal property of the
Issuer, and (iii) any modifications, renewals, extensions or refunding of the
foregoing, except for any of such obligation of the Issuer the payment of which
is made expressly subordinate and junior to the Bonds.
14
ARTICLE III
ISSUANCE OF BONDS
Section 3.01. Issuance of Bonds.
The Issuer may issue the Bonds following the execution of this Indenture
and upon compliance by the Issuer with the conditions set forth in Section 3.02.
Thereupon, the Trustee shall, upon receipt of an Issuer Request, authenticate
such Bonds and deliver them as specified in the Issuer Request against payment
therefor to the Issuer. The Trustee shall be entitled to rely upon the Issuer
Request under this Article III as full evidence that the Issuer has received
upon or prior to the Trustee's delivery of the Bonds, the proceeds from the sale
of the Bonds, which proceeds, may be paid directly to the Issuer or to any
Person designated by the Issuer.
Section 3.02. Conditions to Issuance.
(a) The Bonds may be executed by the Issuer and delivered to the Trustee
for authentication and, thereupon, the same shall be authenticated and delivered
by the Trustee upon receipt of an Issuer Request, compliance with the conditions
of this Section 3.02 and receipt by the Trustee (in form and substance
satisfactory to the Trustee and Counsel for the Trustee) of, or compliance with,
as the case may be, the following:
(i) A Board Resolution authorizing the execution and delivery of the
Indenture and the issuance, execution, authentication and delivery of the
Bonds to be authenticated and delivered.
(ii) An Opinion of Issuer's Counsel dated the Closing Date in form and
substance satisfactory to the Trustee.
(iii) An Officers' Certificate dated the Closing Date stating that:
(A) there is no Default or Event of Default under the Indenture;
(B) the execution and delivery of, and performance by the Issuer
of its obligations under the Indenture, the Bond Purchase Agreements,
and the other documents to which it is a party pursuant thereto, the
execution, issuance and delivery of the Bonds and compliance with the
conditions thereof under the circumstances contemplated thereby will
not conflict with, or result in any breach or default under, the
Issuer's Certificate of Incorporation or bylaws, and will not result
in a breach or default under, or conflict in any material respect
with, or violate any governmental rule or regulation applicable to the
Issuer or its operations, or any indenture, mortgage, deed of trust or
other agreement or instrument to which the Issuer is a party or by
which it or its property is bound, or any existing state or federal
law, ordinance, administrative ruling or regulation, or any order of
any court or administrative agency entered in any Proceeding to which
the Issuer is a party or by which it or its property may be bound or
to which it or its property may be subject;
15
(C) the representations and warranties of the Issuer contained
herein are true and correct;
(D) there has been compliance with all conditions precedent
provided in this Indenture relating to the authentication and delivery
of the Bonds applied for;
(E) neither the Issuer nor, to the knowledge of such Officers,
any Person acting on its behalf has offered or sold the Bonds by any
form of general solicitation or general advertising, including but not
limited to any advertisement, article, notice or other communication
published in a newspaper, magazine or similar media or broadcast over
television or radio or any seminar or meeting whose attendees were
invited by general solicitation or general advertising.
(iv) An Issuer Request directing the Trustee to deliver the Bonds to
the Purchasers on behalf of the Issuer.
(v) The disbursement of the Costs of Issuance on the Closing Date.
(vi) The purchase or other acquisition of the Collateral by the
Trustee.
(vii) Such other documents and Opinions of Counsel as the Trustee (or
the Placement Agent for the Bonds) may reasonably require.
ARTICLE IV
SECURITY INTEREST; COLLATERAL
Section 4.01. Absolute Grant of Collateral.
The Issuer does hereby transfer, assign and set over to the Trustee for the
benefit of the Bondholders, without recourse, the original Collateral or that
amount of the proceeds from the sale and issuance of the Bonds as may be
required on the Closing Date for the Trustee to purchase the original Collateral
in its own name as Trustee for the Bondholders, and upon satisfaction and
discharge of the Indenture in accordance with Article X hereof, as Trustee for
the Issuer. The title of the Trustee to the Collateral and all monies due or to
become due with respect thereto including, without limiting the generality of
the foregoing, the proceeds and products thereof and any substitutions therefor
or additions thereto, now existing or hereinafter acquired, shall be
unconditional, and shall be used to secure (i) all payments required to be made
by the Issuer with respect to the Bonds; (ii) the performance and observance by
the Issuer of its agreements and covenants hereunder and under the Bonds; and
(iii) the payment of any and all other liabilities of the Issuer under the Bonds
16
and this Indenture, direct or indirect, absolute or conditional, now due or to
become due, or now existing or hereafter arising. Upon satisfaction and
discharge of this Indenture, the Trustee shall disburse the Collateral as
directed by the Issuer in an Issuer Order.
ARTICLE V
INVESTMENTS
Section 5.01. General Investments.
The Trustee shall invest and reinvest monies held in any Fund established
by this Indenture in accordance with an Issuer Order or Orders, but only in one
or more Eligible Investments. In computing the amount in any Fund created
hereunder, obligations purchased as an investment of monies therein shall be
valued at the market value of such obligations, exclusive of any accrued but
unpaid interest. Such computations of amount shall be determined whenever
required pursuant to the terms of this Indenture.
Section 5.02. General Provisions Regarding Funds.
(a) The Trustee shall not invest the proceeds of any Funds held hereunder
or sell any investment held hereunder unless the security interest granted and
perfected in such Fund will continue to be perfected in such investment or the
proceeds of such sale.
(b) Earnings on investments shall be credited to, and losses shall be
charged to, the particular Fund from which such investment was made.
(c) Neither the Trustee nor the Issuer shall, in any way, be held liable or
responsible by reason of any insufficiency in any Fund resulting from any loss
on any Eligible Investment or Collateral included therein.
ARTICLE VI
ACCOUNTS AND ACCOUNTINGS
Section 6.01. Collection of Money.
17
Except as otherwise expressly provided herein, the Trustee shall collect
directly and without intervention or assistance of any agent or other
intermediary, all money and other property payable to or receivable by the
Trustee pursuant to this Indenture.
Section 6.02. Creation of Funds.
On or before the Closing Date, the Trustee shall establish on its records
the following accounts and funds (collectively referred to as the "Funds") to be
maintained by the Trustee for the benefit of the Holders:
(a) Administrative Expenses Fund
(b) Debt Service Fund
(c) Collateral Purchase Sinking Fund
All monies deposited in the Funds shall be used solely for the purposes set
forth in this Indenture.
Section 6.03. Deposit of Bond Proceeds.
The purchase price of the Bonds deposited with the Trustee by wire transfer
on the Closing Date shall be deposited or disbursed by the Trustee on the
Closing Date upon an Issuer Order as follows:
(a) The amount required by Section 6.04 for the Administrative Expenses
Fund; (c) The amount required by Section 6.05 for the Debt Service
Fund; (d) The amount required by Section 6.06 for the Collateral
Purchase Sinking Fund; (e) The balance shall be disbursed as directed
by the Issuer.
Section 6.04. Administrative Expenses Fund.
(a) The Trustee shall, on the Closing Date, establish the Administrative
Expenses Fund into which an amount equal to $______________ shall be deposited.
(b) Any portion of the Administrative Expenses Fund not disbursed to pay
the Trustee's fees and expenses at the Closing Date shall be invested and
reinvested by the Trustee at the direction of the Issuer pursuant to an Issuer
Order in one or more Eligible Investments. All income or other gain from such
investments shall be credited to such Administrative Expenses Fund and any loss
resulting from such investments shall be charged to such Administrative Expenses
Fund. If the Administrative Expenses Fund is insufficient, in the reasonable
opinion of the Trustee, to pay the Administrative Expenses contemplated by this
Indenture, the Issuer shall, upon written notice from the Trustee, deposit
additional funds into such Fund.
18
Section 6.05. Debt Service Fund.
Seven (7) Business Days before each Payment Date, or earlier at the
discretion of Issuer, the Issuer shall deposit into the Debt Service Fund an
amount equal to the next scheduled debt service payment of interest and/or
principal. Such monies will be invested in Eligible Investments by the Trustee
pursuant to an Issuer Order pending disbursement on the Payment Date.
Section 6.06. Collateral Purchase Sinking Fund.
As and for a sinking fund for the retirement of the Bonds, the Company, as
long as any of the Bonds shall be outstanding, shall pay to the Trustee on or
before the Business Day which next precedes December 31 in each year commencing
with the year 2003 to and including 2007, cash payments or cash sufficient in
amounts to purchase U.S. Treasury Bonds or Notes maturing on or before December
31, 2007 (each such Business Day being herein referred to as a "Sinking Fund
Payment Date"), (herein referred to as a "Sinking Fund Payment") in an amount
payable at their maturity equal to 20% of the principal amount of the then
outstanding Bonds. Not later than December 1 of each year, the Company shall
deliver to the Trustee an Officers' Certificate which will specify the amount of
the Sinking Fund Payment thus calculated.
Sinking Fund Payments shall not be applied to the payment of interest on
Bonds. At its option, the Company may reduce its obligation to make any Sinking
Fund Payment in cash by delivering to the Trustee not later than the December 1
next preceding the Sinking Fund Payment Date, for credit against such Sinking
Fund Payment, Bonds which have been acquired by the Company and an Officers'
Certificate stating the election of the Company to have credited against such
Sinking Fund Payment the principal amount of Bonds to be delivered.
Section 6.07. Information by Trustee.
The Trustee shall supply in a reasonably timely fashion to the Issuer any
information readily available to the Trustee that the Issuer may from time to
time reasonably request with respect to any of the Funds established hereby or
for any other information reasonably available to the Trustee.
Section 6.08. Reports.
At least fifteen (l5) days prior to each Payment Date, if and to the extent
requested by the Issuer, the Trustee shall provide the Issuer with the "Trustee
Accounting Report," which shall contain the following information as of the
immediately preceding Payment Date:
(i) The next interest and/or principal installment due and payable on
the Bonds since the last Payment Date and the balance, if any, of the Debt
Service Fund;
19
(ii) The Aggregate Outstanding Principal Amount of the Bonds as of the
last Payment Date;
(iii) The balance in the Administrative Expense Fund and Debt Service
Fund on the last Payment Date, if any; and
(iv) Administrative Expenses paid during the period preceding the
lastest Payment Date;
provided, however, the Trustee shall not be required to include any information
in such report if such information was previously furnished or otherwise made
available to the Issuer.
ARTICLE VII
APPLICATION OF MONIES
Section 7.01. Disbursements of Monies from the Funds.
The Trustee shall withdraw from the appropriate Fund amounts sufficient for
the following purposes in the following order of priority:
(a) In the event the Trustee has not otherwise been paid its fees, costs
and disbursements, the Trustee may withdraw sufficient funds from the
Administrative Expenses Fund for such purposes; and
(b) On each Payment Date, from the Debt Service Fund, the Trustee shall pay
the sum of interest and principal, if any, then due and payable on the Bonds to
the Bondholders. If the Debt Service Fund is insufficient for such purposes, the
Trustee shall advise the Issuer in writing at least five (5) calendar days prior
to such Payment Date, and, if sufficient funds are not deposited by the Issuer
to cover such shortfall in time for the Trustee to make the next scheduled
payment of interest or principal, the Trustee shall provide notice of same to
the Bondholders within ten (10) Business Days after such Payment Date.
ARTICLE VIII
REDEMPTION OF BONDS
Section 8.01. Redemption at the Option of the Issuer.
20
A. The Bonds shall be redeemable in whole or in part at the option of the
Issuer for the Redemption Price upon notice to the Trustee at any time after
January 1, 2002 upon satisfaction of the following conditions:
(a) The Issuer shall pay a redemption price as follows:
Period Payment Rate
January 1, 2002 to December 31, 2002 105% of par value, plus accrued interest
January 1, 2003 to December 31, 2003 104% of par value, plus accrued interest
January 1, 2004 to December 31, 2004 103% of par value, plus accrued interest
January 1, 2005 to December 31, 2005 102% of par value, plus accrued interest
January 1, 2006 to December 31, 2006 101% of par value, plus accrued interest
January 1, 2007 to December 31, 2007 100% of par value, plus accrued interest
(b) The Issuer shall provide the Trustee with an Officers' Certificate
certifying that all of the foregoing conditions have been satisfied, and the
Trustee may conclusively rely upon such Officers' Certificate.
Section 8.02. General Requirements.
(a) In the event of a partial Redemption, such Redemption shall be made pro
rata among the Holders of the Bonds by redeeming from each Holder that principal
amount of Bonds which bears the same proportion to the principal amount of Bonds
registered in the name of such Holder as the total available monies to be
distributed on the Redemption Date bears to the Aggregate Outstanding Principal
Amount of the Bonds prior to such Redemption. In the event a strict pro rata
Redemption among all the Holders cannot be made, the Issuer may redeem more than
a pro rata portion from one or more of the Holders of Bonds in such manner as
the Trustee deems fair and reasonable; provided, however, that at no time shall
the pro rata portion of the Bonds theretofore redeemed or to be redeemed in part
from any Holder exceed by one hundred dollars ($100) of the principal amount,
the principal portion of Bonds of such Holder which would be redeemed or which
would have been redeemed on a strict pro rata basis.
(b) In the event that less than the entire principal amount of a Bond shall
be redeemed on the Redemption Date, the Trustee shall make appropriate entries
on the Bond Register to reflect the portion thereof so redeemed and the amount
of principal of such Bond remaining outstanding, and the Holder thereof shall
surrender such Bond to the Trustee for like notation of such information thereon
on the blanks provided therefor. The Trustee's entry on the Bond Register shall
be conclusive in the absence of manifest error as to the outstanding principal
amount of any Bond.
21
(c) All amounts held by the Trustee or Issuer due to non-presentment of
Bonds on any Redemption Date must be paid over to and retained by the Trustee
for a period of at least one (1) year after the final maturity date or
applicable Redemption Date. If after one (1) year any Bond has not been
presented for payment, the Holder of such Bond shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof.
Section 8.03. Payment of Redemption Price.
Payment of the Redemption Price shall be made by the Trustee to or upon the
order of the Holder of the Bonds called for Redemption upon surrender of the
Bond to the Trustee. The Trustee shall enter a notation on the Bond Register of
the amount of any partial Redemption of a Bond. The Redemption Price shall be
payable to the Bondholders by check (or if the necessary information is provided
by the Bondholder, by wire transfer) to the Persons whose names appear as the
registered Holders thereof on the Bond Register as of the Record Date applicable
to such Redemption Date and identified in such notice of Redemption. In the
event of a partial Redemption, the Bondholder shall surrender the Bond to be
partially redeemed to the Trustee for a notation to be made thereon. The
expenses of giving notice and any other expenses of Redemption (except accrued
interest) shall be an Administrative Expense payable by the Trustee from the
Administrative Expense Fund.
Section 8.04. Form of Redemption Notice.
(a) Notices of Redemption of Bonds shall be prepared by the Issuer and
given by the Trustee in the name and at the expense of the Issuer at the
following times and to the following Persons:
Notice of any Redemption of the Bonds shall be mailed by registered mail no
later than sixty (60) days prior to such Redemption Date to the Persons who were
Holders of the Bonds to be redeemed on the related Record Date;
(b) All notices of Redemption shall state:
(i) the Record Date and the Redemption Date,
(ii) the Redemption Price,
(iii) the name and address of the Paying Agent (which may be the
Trustee), and
(iv) that on such Redemption Date the Redemption Price will become due
and payable with respect to the principal amount of each Bond as shall be
specified in such notice, that the amount payable in respect of the
principal amount of each such Bond so redeemed shall be limited to the
Redemption Price therefor, that no interest shall accrue on such principal
amount of Bonds to be redeemed for any period after the Redemption Date.
22
(c) Failure to give notice of Redemption, or any defect therein, to any
Holder of any Bond selected for Redemption shall not impair or affect the
validity of the Redemption of any other Bond.
Section 8.05. Bonds Payable on Redemption Date.
Notice of Redemption having been given, the Bonds or portions thereof to be
redeemed shall, on the applicable Redemption Date, become due and payable at the
Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price, in which event the Bond shall remain in full force and effect
until the Redemption Price is paid in full) no interest shall accrue on such
Redemption Price for any period after such Redemption Date.
Section 8.06. Redemption at the Option of the Bondholders.
(a) The Holders of the Bonds may tender Bonds or portions thereof to the
Trustee for repurchase by the Issuer at a price of one hundred percent (100%) of
the principal amount thereof plus accrued but unpaid interest to the date of
payment for such repurchase; provided such tender is made at any time on or
after December 31, 2002. Such tenders will be accepted by the Trustee on a
first-come, first-served basis. The Issuer shall only be obligated to honor
tenders in any one calendar year up to a total principal amount equal to ten
percent (10%) of the Original Aggregate Outstanding Principal Amount, commencing
with calendar year 2003. All tenders received by the Trustee on the same
Business Day shall be deemed to have been received simultaneously. In the event
that tenders are received on a Business Day which, when added to all prior
tenders exceed the obligation of the Issuer to honor such tenders, the Trustee
shall notify the Issuer of the amount of such tenders. The Issuer shall have
fifteen (15) days following such notice to either (i) agree in writing to honor
all such tenders or (ii) advise the Trustee to pro-rate such tenders. If the
Issuer shall not make an election in writing within the period provided, the
Trustee shall pro-rate such tenders.
(b) The Trustee shall give notice to the Issuer of all tenders for
repurchase within five (5) Business Days after the Trustee's receipt thereof.
Provided that the Issuer shall not have previously repurchased the maximum
principal amount of Bonds provided for by subsection (a) hereof, the Issuer
shall have forty-five (45) days to deposit with the Trustee the outstanding
principal amount of the Bond, Bonds or part of a Bond tendered for repurchase
plus accrued but unpaid interest through and including the date of such deposit,
at which time the Issuer's obligation to pay, and the Bondholder's right to
receive, interest on such principal amount shall cease, provided that the Issuer
shall have deposited the amount due within such forty-five (45) day period.
Failure of the Issuer to make such deposit within the time permitted shall be an
Event of Default under Article XIV hereof.
23
(c) In the event that the Trustee is required to pro-rate excess Bonds
tendered for repurchase, such pro-ration shall be performed as set forth in
Section 8.02; and notice of pro-ration shall be given to the tendering Holders
pursuant to Section 8.04.
(d) After the Issuer has deposited sufficient funds with the Trustee to
repurchase the maximum amount of Bonds which it shall be obligated to repurchase
hereunder, the Issuer shall not have any obligation or liability to any Holder
purporting to tender Bonds for its refusal to repurchase any such Bonds.
Section 8.07. Release of Collateral Following Redemption.
Upon completion of any Redemption of Bonds pursuant to this Article VIII,
the Issuer may deliver to the Trustee an Issuer Order directing the Trustee to
sell so much of the Collateral as would equal, at the maturity of the instrument
or instruments constituting the Collateral, the principal amount of the Bonds so
redeemed prorata to the amount required to be held by the Trustee for the
balance of the outstanding Bonds. Upon sale of such securities, the net proceeds
thereof shall be payable to the Issuer. In the event that the zero-coupon
treasury securities constituting the Collateral cannot be segregated to match
the principal amount of Bonds redeemed, then the Trustee shall sell so many of
such securities as it may, such that the maturity face amount of the securities
remaining as part of the Collateral is greater than the Aggregate Outstanding
Principal Amount of the Bonds.
ARTICLE IX
NO CONVERSION INTO COMMON STOCK
Section 9.01. No Right to Convert.
The Bonds are debt obligations of the Issuer and the Holders have no right
to convert into common stock of the Issuer.
ARTICLE X
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge of Indenture.
Whenever the following conditions shall have been satisfied:
24
(a) either
(i) all Bonds theretofore authenticated and delivered (other than (A)
Bonds which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07, and (B) Bonds which have been
redeemed or for whose payment money has theretofore been deposited in trust
and thereafter repaid to the Issuer or discharged from such trust as
provided in Section 10.02) have been delivered to the Trustee for
cancellation; or
(ii) all Bonds not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at Stated Maturity of the final
installment of the principal thereof within one year, and the Issuer,
in the case of clauses (A) or (B) hereinabove, has deposited or caused
to be deposited with the Trustee, in trust for such purpose, an amount
sufficient to pay and discharge the entire indebtedness on such Bonds
not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of
Bonds which have become due and payable) or to their Stated Maturity;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that all conditions precedent herein provided
for the satisfaction and discharge of this Indenture with respect to the Bonds
have been complied with; then, this Indenture and the lien, rights and interests
created hereby and thereby shall cease to be of further effect and the Trustee
and each co-trustee and separate trustee, if any, then acting as such hereunder
shall, at the expense of the Issuer, execute and deliver all such instruments as
may be necessary to acknowledge the satisfaction and discharge of this Indenture
and shall pay or assign or transfer and deliver, to the Issuer or upon the
demand of the Issuer all cash, securities and other property held by it as part
of the Trust Estate, including the Collateral, remaining after satisfaction of
the conditions set forth in clauses (i) and (ii) hereinabove.
(d) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 13.07, the obligations of
the Trustee to the Issuer and the Holders under Sections 10.02 and 13.15 shall
survive, and this Indenture shall cease to be of further effect with respect to
the Bonds except as to (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Bonds, (iii) the rights of
Bondholders to receive payments of principal thereof and interest thereon, (iv)
25
the rights, obligations and immunities of the Trustee hereunder, and (v) the
rights of Bondholders as beneficiaries hereof with respect to the property so
deposited with the Trustee and payable to all or any of them.
Section 10.02. Application of Trust Money.
(a) Any money deposited with the Trustee pursuant to this Indenture shall
be held in trust and applied by it, in accordance with the provisions of the
Bonds and this Indenture, to the payment, either directly or through any paying
agent, as the Trustee may determine, to the Persons entitled thereto, of the
principal, and interest for whose payment such money, has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required herein or required by law.
(b) Any money deposited with the Trustee or any paying agent in trust for
the payment of the principal of or interest on any Bond and remaining unclaimed
for one (1) year after such principal or interest has become due and payable
shall be paid to the Issuer; and the Holder of such Bond shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and all
liability of the Trustee or such paying agent with respect to such trust money
(but only to the extent of the amounts so paid to the Issuer), shall thereupon
cease; provided, however, that (i) no such release of payment shall be made
unless the Trustee or such paying agent, before being required to make any such
release of payment, may at the expense of the Issuer cause to be published once,
in the Wall Street Journal notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than thirty (30) days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
ARTICLE XI
GENERAL COVENANTS
Section 11.01. Payment of Principal, Redemption Price and Interest.
The Issuer covenants that it shall promptly pay or cause to be paid (a) the
principal of, Redemption Price for, and interest on the Bonds at the place, on
the dates and in the manner provided herein and in the Bonds; (b) the Trustee's
fees and expenses set forth in Section 13.07 hereof and (c) the other fees and
expenses provided herein.
Section 11.02. Performance of Covenants by Issuer; Due Execution.
Subject to the provisions of Section 11.01 hereof, the Issuer covenants
that it shall faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, in any
26
and every Bond executed, authenticated and delivered hereunder and in all of its
Proceedings pertaining hereto.
Section 11.03. Protection of Trust Estate.
(a) The Issuer shall cause initially to be filed and will from time to time
execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance,
and other instruments, and will take such other action as may be necessary or
advisable to:
(i) maintain or preserve the lien of this Indenture or carry out more
effectively the purposes hereof,
(ii) perfect, publish notice of, or protect the validity of, any grant
made to or made by this Indenture,
(iii) enforce any of the provisions of this Indenture or the Bonds;
and
(iv) preserve and defend title to the Trust Estate and the Collateral
and the rights of the Trustee, and of the Holders secured thereby, against
the claims of all persons and parties.
(b) The Issuer hereby designates the Trustee its agent and attorney-in-fact
to execute, upon the Issuer's failure to do so, any financing statement,
continuation statement or other instrument that is permitted pursuant to this
Section 11.03; provided, however, that such designation shall not be deemed to
create a duty in the Trustee to monitor the compliance of the Issuer with the
foregoing covenants and provided, further, that the duty of the Trustee to
execute any instrument required pursuant to this Section 11.03 shall arise only
if a Responsible Officer has received written notice of any failure of the
Issuer to comply with the provisions of this Section 11.03.
Section 11.04. No Disposition of Trust Estate.
Except as permitted by this Indenture, the Issuer shall not sell, assign,
or otherwise encumber or dispose of its interest in the Trust Estate, and will
promptly pay or cause to be discharged, or make adequate provision in the
judgment of the Trustee to discharge, any lien or charge on any part thereof not
permitted hereby.
27
Section 11.05. Access to Books and Reports; Filing of Notices and Reports.
All books and other records in the possession of the Issuer relating to the
Collateral and the Trust Estate shall at all reasonable times be open to
inspection by such accountants or other agents as the Trustee from time to time
may designate, to the extent lawful.
Section 11.06. Annual Statement as to Compliance.
The Issuer covenants that on or before one hundred twenty (120) days after
the end of the first fiscal year of the Issuer which ends more than three (3)
months after the Closing Date, and each fiscal year thereafter, the Issuer shall
deliver to the Trustee a written statement signed by an Authorized Officer of
the Issuer, stating, as to each signer thereof, that
(a) a review of the fulfillment by the Issuer during such year of its
obligations under this Indenture has been made under such officer's supervision;
and
(b) the Issuer has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a Default in the fulfillment of any
such obligation, specifying each such Default known to such officer and the
nature and status thereof.
Section 11.07. No Borrowing Against Trust Estate.
The Issuer shall not incur or assume any indebtedness, or guarantee any
indebtedness of any Person, secured by any portion of the Trust Estate or the
Collateral, except for such indebtedness as may be incurred by the Issuer in
connection with the issuance of the Bonds pursuant to this Indenture unless such
subsequent obligation shall be expressly subordinated to the rights of the
Trustee and the Holders to the Trust Estate and the proceeds thereof.
Section 11.08. Corporate Existence.
So long as the Bonds are outstanding and the Issuer has not been released
from liability thereon, it shall maintain its corporate existence and will not
take any action which would cause it not to continue in good standing and remain
qualified to do business under applicable laws of the United States and any
applicable state law, and that it will not dissolve or otherwise dispose of all
or substantially all of its assets, and shall not voluntarily consolidate with
or merge into any other entity unless such surviving entity shall expressly
agree to be bound by the terms of this Indenture.
Section 11.09. Taxes.
Subject to its right to lawfully contest any such imposition, the Issuer
shall pay all taxes when due and payable or levied against its assets,
properties or income, including the Collateral.
28
Section 11.10. Absolute Obligation.
(a) The obligations of the Issuer hereunder shall be irrevocable and
unconditional. This Indenture may not be altered, amended, revoked or
terminated, notwithstanding any event, foreseen or unforeseen, as more fully set
forth below, except as may be approved in writing by the Trustee in accordance
with Article XV. The Issuer recognizes that the initial purchasers of the Bonds,
and each subsequent Holder thereof, have relied, and are and will be relying, on
the obligations of the Issuer hereunder as security for the prompt payment of
the principal of, Redemption Price for, and interest on the Bonds.
(b) The Issuer shall not be entitled to any abatement, diminution, setoff,
abrogation, waiver or modification of its obligations hereunder or under the
Bonds nor to any termination of this Indenture by any reason whatsoever except
as expressly provided herein regardless of any rights of set-off, recoupment or
counterclaim that the Issuer may otherwise have against any Holder or any other
party or parties and regardless of any contingency, act of God, event or cause
whatsoever notwithstanding any circumstance or occurrence that may arise or take
place before, during or after execution of this Indenture and the authentication
of the Bonds including, without limiting the generality of the foregoing, any
lack of validity or enforceability of the Bonds or any other document executed
and delivered in connection with the transactions contemplated hereby, any
statement, instrument or other document presented under this Indenture being
proved to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being proven to be untrue or inaccurate in any respect
whatsoever, the failure by the Trustee to enforce this Indenture on a timely
basis, or any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing.
Section 11.11. Insurance.
The Issuer shall maintain, with insurance companies of recognized standing,
insurance against such risks and in such amounts as are customarily insured by
persons engaged in similar businesses.
ARTICLE XII
ISSUER REPRESENTATIONS AND WARRANTIES
Section 12.01. Representations and Warranties.
(a) In addition to the representations and warranties contained elsewhere
in this Indenture and in any certificate delivered by the Issuer pursuant to
this Indenture (all statements made therein being deemed representations and
warranties for purposes hereof) , the Issuer represents and warrants to, and
covenants with, the Trustee and the Holders, as their respective interests may
appear, that:
29
(i) It is duly organized and existing as a corporation under the laws
of the State of New York and is qualified to do business and in good
standing in every jurisdiction in which the nature of its activities,
including without limitation issuance of the Bonds and the execution,
delivery and performance of this Indenture requires such qualification;
(ii) It has the corporate power to execute, deliver and perform and
enter into the transactions contemplated by this Indenture and the Bonds,
and has duly authorized its execution, delivery and performance of, and the
transactions contemplated by, this Indenture, the Bonds and the other
documents to which it is a party pursuant to the foregoing;
(iii) The Indenture and the Bonds each constitute a legal, valid and
binding obligation of the Issuer enforceable against Issuer in accordance
with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(iv) Neither the execution and delivery by it of, nor the performance
by it of its obligations under, this Indenture, the Bonds, or the other
documents to which it is a party pursuant thereto, the consummation of the
transactions contemplated hereby or thereby nor the fulfillment of or
compliance with the terms and conditions of this Indenture, the Bonds or
the other documents to which it is a party pursuant thereto, conflict with
or result in a breach of any of the terms, conditions or provisions of its
Certificate of Incorporation or bylaws, any legal restriction, rule,
statute or regulation or any agreement or instrument to which it is now a
party or by which it or any of its property is bound, or constitutes at
default under any of the foregoing;
(v) The Board Resolution authorizing the execution, delivery and
performance of this Indenture, the Bond Purchase Agreement and all other
documents to which it is a party pursuant thereto, the issuance and sale of
the Bonds and the grant of the Collateral to the Trustee is in full force
and effect and has not been amended or altered, and the Issuer has taken
all of the necessary action on its part to carry out the transactions
contemplated by this Indenture, the Bonds and the other documents to which
it is a party pursuant thereto;
(vi) To the best of Issuer's knowledge, all approvals, consents and
orders of any governmental authority having jurisdiction over it, or which
would constitute a condition precedent to the performance by the Issuer of
its obligations hereunder or under the Bonds or the other documents to
which it is a party pursuant thereto, have been obtained or given and are
in effect, and the Issuer and its operations are in compliance with all
30
federal or state statutes and regulations applicable to the transactions
contemplated by this Indenture, the Bonds and the other documents to which
it is a party pursuant thereto, a violation of which would or could
materially and adversely affect its ability to carry out its obligations
hereunder and under the Bonds;
(vii) There is no action, suit, proceeding, inquiry or investigation,
at law or in equity, before or by any court, public board or body pending
or, to the Issuer's best knowledge, threatened against or affecting the
Issuer (or, to the Issuer's best knowledge, any basis therefor) wherein an
unfavorable decision, ruling or finding would materially adversely affect
the existence or operations of the Issuer, the validity or enforceability
of this Indenture, the Bonds, the grant of Collateral to the Trustee or the
obligations of the Issuer thereunder or hereunder, or under any agreement
or instrument to which the Issuer is a party and which is used or
contemplated for use in the consummation of the transactions contemplated
hereunder or under the Bonds, would adversely affect the proceedings of the
Issuer in connection herewith or therewith or would or could materially and
adversely affect the Issuer's ability to carry out its obligations
hereunder and thereunder; and
(viii) The Conversion Shares have been duly reserved for issuance upon
Conversion, and upon Conversion in accordance with Article IX hereof, such
Conversion Shares shall be duly authorized, full paid and non-assessable.
(b) The representations and warranties set forth in this Section 12.01 and
elsewhere in this Indenture or in any certificate delivered pursuant hereto
shall be deemed given as of the Closing Date and shall survive delivery of the
Bonds.
(c) If any representation contained in this Indenture shall prove to be
untrue or incorrect in any material respect, and if the Trustee has notice of
its falsity or inaccuracy in accordance with Section 13.02 hereof, the Trustee
shall give written notice thereof to the Issuer and the Issuer shall have thirty
(30) days in which to correct such Default; and if such correction is made in
accordance with this section, no Event of Default shall occur as a result.
ARTICLE XIII
THE TRUSTEE
Section 13.01. Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default, undertakes
to perform such duties and only such duties as are specifically set forth in
this Indenture. If an Event of Default has occurred and is continuing, the
31
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 of which the
Trustee receives notice under Section 13.02:
(i) The Trustee need perform only those duties that are specifically
set forth in this Indenture, and no others and no implied covenants or
obligations of the Trustee shall be read into this Indenture.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. The
Trustee shall, however, examine such certificates and opinions to determine
whether they conform to the requirements of this Indenture but need not
verify the accuracy of the contents thereof or whether the procedures
specified by or pursuant to the provisions of this Indenture have been
followed in the preparation thereof.
(c) Subject to 13.01(a), the Trustee may not be relieved from liability for
its own gross negligent action, its own gross negligent failure to act, or its
own willful misconduct or bad faith, except that:
(i) This paragraph does not limit the effect of these subsections (b)
and (c) (ii) hereof.
(ii) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was grossly negligent in ascertaining the pertinent facts or acted in bad
faith.
(d) Except with respect to Sections 13.01 and 13.02, which shall not be
limited by this Section 13.01(d), for all other purposes under this Indenture,
the Trustee shall not be deemed to have notice of any Event of Default described
in Section 14.01(c) or 14.01(d) or any Default described in Section 14.01(e)
unless a Responsible Officer assigned to and working in the Trustee's Corporate
Trust Office has actual knowledge thereof or unless written notice from the
Issuer or any Holder of any event which is in fact such an Event of Default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Bonds generally, the Issuer, any Trust Estate or this Indenture
and specifies the nature of the Event of Default.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
32
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it; provided, however, that the Trustee shall not refuse or fail to
perform any of its duties hereunder solely as a result of nonpayment of its
normal fees and expenses and further provided that nothing in this Section
13.01(e) shall be construed to limit the exercise by the Trustee of any right or
remedy permitted under this Indenture or otherwise in the event of the Issuer's
failure to pay the Trustee's fees and expenses pursuant to Section 13.07. In
determining that such repayment or indemnity is not reasonably assured to it,
the Trustee must consider not only the likelihood of repayment or indemnity by
or on behalf of the Issuer but also the likelihood of repayment or indemnity
from amounts payable to it from the applicable Trust Estate pursuant to Sections
7.01 and 13.07.
(f) Notwithstanding any extinguishment of all right, title and interest of
the Issuer in and to the Trust Estate following a Default and a consequent
declaration of acceleration of the Maturity of the Bonds, whether such
extinguishment occurs through a sale of the Trust Estate to another Person, the
acquisition of the Trust Estate by the Trustee or otherwise, the rights, powers
and duties of the Trustee with respect to the Trust Estate (or the proceeds
thereof) and the Holders of the Bonds and the rights of the Bondholders shall
continue to be governed by the terms of this Indenture.
Section 13.02. Notice of Default.
(a) Notwithstanding anything herein to the contrary, the Trustee shall not
be required to take notice, or be deemed to have notice, of any Default or Event
of Default hereunder except for Events of Default described in Sections 14.01(a)
and (b) unless a Responsible Officer of the Trustee shall be notified in writing
of the Default or Event of Default, specifying the nature of the Default or
Event of Default, by the Issuer or any Holder, or by a judicial order delivered
to the Responsible Officer of the Trustee or unless a Responsible Officer of the
Trustee shall have actual knowledge of any Default or Event of Default.
(b) Within ten (10) Business Days after receipt of notice of any Event of
Default hereunder, the Trustee shall transmit by registered class mail to the
Issuer and all Holders of Bonds, as their names and addresses appear on the Bond
Register, a notice of such Event of Default hereunder known to the Trustee,
unless the Trustee has been notified in writing by an Opinion of Counsel that
such Default or Event of Default shall have been cured or waived by the date
such notice is to be mailed. The Trustee shall have no obligation to verify the
factual basis underlying such Opinion of Counsel and may conclusively rely upon
such Opinion of Counsel.
Section 13.03. Rights of Trustee.
Except as otherwise provided in Section 13.01:
33
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, note or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) Whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) The Trustee may consult with counsel with respect to legal matters or
questions of law arising hereunder and the written advice of such counsel or any
Opinion of Counsel with respect to such legal matters or questions of law shall
be full and complete authorization and protection in respect to any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon
and all reasonable fees and expenses associated with such representation shall
be paid for by the Issuer;
(e) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Bondholders, pursuant to this Indenture, unless such Bondholders shall have
offered to the Trustee reasonable security and/or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may determine
necessary, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney;
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through, and may consult
with as necessary to carry out its obligations hereunder, agents or attorneys
including Counsel to the Trustee, certified public accountants and recognized
authorities in their fields (who are not employees of the Trustee) and the
Trustee shall not be responsible for any misconduct or negligence on the part of
any such persons appointed with due care by it hereunder;
34
(h) The Trustee shall not be required to give any bond or surety in respect
of the execution of the said trusts and powers or otherwise in respect to the
premises; and
(i) Notwithstanding anything elsewhere in this Indenture with respect to
the authentication of any Bonds, the withdrawal of any cash, the release of any
property or any action whatsoever within the purview of this Indenture, the
Trustee shall have the right, but shall not be required, to demand any showings,
certificates, opinions, appraisals or other information, or corporate action or
evidence thereof, in addition to that by the terms hereof required as a
condition of such action, deemed desirable by the Trustee for the purpose of
establishing the right of the Issuer to the authentication of any Bonds, the
withdrawal of any cash or the taking of any other action by the Trustee.
Section 13.04. Not Responsible for Recitals or Issuance of Bonds.
The recitals contained herein and in the Bonds, except the certificates of
authentication on the Bonds, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for their correctness or the accuracy or
the completeness of any of the information contained therein. The Trustee makes
no representations with respect to any Trust Estate or as to the validity or
sufficiency of the Trust Estate, this Indenture or of the Bonds. The Trustee
shall not be accountable for the use or application by the Issuer of Bonds or
the proceeds thereof or any money paid to the Issuer pursuant to the provisions
hereof.
Section 13.05. May Hold Bonds.
The Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Bonds and, subject to Sections
13.08, 13.09 and 13.13, may otherwise deal with the Issuer or any Affiliate of
the Issuer with the same rights it would have if it were not Trustee or such
other agent. The Trustee and officers and agents of the Trustee also may engage
in or be interested in any financial or other transaction with the Issuer;
provided, however, that if the Trustee determines, in its sole discretion, that
any such relationship is in conflict with its duties under this Indenture, it
shall eliminate the conflict or resign as Trustee.
Section 13.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by this Indenture or by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Issuer.
Section 13.07. Compensation and Reimbursement.
(a) The Issuer agrees as follows:
35
(i) subject to any separate written agreement with the Trustee, to pay
the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its gross negligence,
willful misconduct, or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without gross negligence, willful
misconduct, or bad faith on the Trustee's part, arising out of, or in
connection with, the acceptance or administration of this trust, including
the costs and expenses of defending itself (including reasonable legal
fees) against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, provided that with
respect to any such claim, the Trustee shall have given the Issuer written
notice thereof as promptly as practical after the Trustee shall have
written knowledge thereof.
The obligations of the Issuer under this Section 13.07 (a) shall survive the
termination of the Trust and the resignation or removal of the Trustee.
(b) As security for the performance of the obligations of the Issuer under
this Section 13.07, the Trustee shall have a priority lien to the lien of the
Bondholders with respect to which any claim of the Trustee under this Section
13.07 arose upon all property and funds held or collected as part of the Trust
Estate by the Trustee in its capacity as such.
(c) Except in the event of non-payment of principal and any interest due on
the Bonds, the Trustee agrees that it shall not take any action to cause the
Issuer to be declared insolvent or to have a receiver of the Issuer appointed by
reason of the nonpayment of the fees and expenses of the Trustee until the later
of (i) ninety-one (91) days after the payment in full of all Bonds issued under
this Indenture and (ii) one (1) day plus the number of days in the longest
applicable avoidable preference period, if any, under the laws of the State of
New York after the payment in full of all the Bonds issued under this Indenture.
36
Section 13.08. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state or of the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least five million dollars ($5,000,000), subject to supervision or
examination by Federal or State authority and having an office within the United
States of America. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 13.08, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 13.08, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article XIII.
Section 13.09. Disqualification; Conflicting Interest.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section 13.09, it shall, within ninety (90) days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect hereinafter
specified in this Article XIII.
(b) In the event that the Trustee shall fail to comply with the provisions
of Section 13.09 (a) , the Trustee shall, within ten (10) days after the
expiration of such ninety (90) day period, transmit by registered mail to all
Bondholders, as their names and addresses appear on the Bond Register, notice of
such failure.
(c) For the purpose of this Section 13.09, the Trustee shall be deemed to
have a conflicting interest if:
(i) the Trustee or any of its directors or executive officers is an
obligor upon the Bonds or an underwriter for the Issuer;
(ii) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under the direct or indirect common control
with the Issuer or an underwriter for the Issuer; or
(iii) any director, officer or employee of the Trustee is also a
director, officer or employee of the Issuer or any Affiliate of the Issuer.
Section 13.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article XIII shall become effective until the
acceptance of appointment by the successor Trustee under Section 13.11 and
acceptance by such successor Trustee of the rights of the Trustee under this
Indenture.
37
(b) The Trustee may resign at any time by giving written notice thereof to
the Issuer. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within thirty (30) days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by act of the Issuer or Act of
the Bondholders representing more than fifty percent (50%) of the then Aggregate
Outstanding Principal Amount of the Bonds, delivered to the Trustee and to the
Issuer.
(d) If at any time:
(i) the Trustee shall have a conflicting interest prohibited by
Section 13.09 and shall fail to resign or eliminate such conflicting
interest in accordance with Section 13.09 after written request therefor by
the Issuer or by any Bondholder;
(ii) the Trustee shall cease to be eligible under Section 13.08; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (a)
the Issuer by an Issuer Order may remove the Trustee, or (b) subject to
Section 14.17, any Bondholder who has been a bona fide Holder of a Bond for
at least six (6) months (or since the Closing Date) may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of the Trustee for any cause, the
Issuer by an Issuer Order shall promptly appoint a successor Trustee. If within
one year after such resignation, removal or incapacity or the occurrence of such
vacancy the Issuer shall not have appointed a successor Trustee, such Trustee
shall be appointed by Act of the Bondholders of Bonds representing more than
fifty percent (50%) of the Aggregate Outstanding Principal Amount of the Bonds
delivered to the Issuer and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede any successor Trustee appointed by the Issuer.
If no successor Trustee shall have been so appointed by the Issuer or
Bondholders and shall have accepted appointment in the manner hereinafter
provided, any Bondholder who has been a bona fide Holder of a Bond for at least
six (6) months (or since the Closing Date) may, on behalf of himself and all
38
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to the Holders as their
names and addresses appear on the Bond Register. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
(g) Any successor Trustee must be approved by the Issuer.
(h) Upon the resignation and removal of the Trustee, the Issuer shall
discharge the Trustee and release the Trustee from all claims and liabilities
incurred by the Trustee subject to the limitations set forth in Section
13.07(a)(iii).
Section 13.11. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee. Notwithstanding the foregoing, on request of the
Issuer or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder subject nevertheless to its lien, if
any, for compensation and reimbursement provided for in Section 13.07. Upon
request of any such successor Trustee, the Issuer shall execute and deliver any
and all instruments for more fully vesting in and confirming to such successor
Trustee all such rights, powers and trusts.
(b) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article XIII.
Section 13.12. Merger, Consolidation or Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee (including an
express assumption of the obligations of the Trustee under this Indenture),
shall be the successor of the Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article XIII, without the
39
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Bonds have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Bonds so
authenticated with the same effect as if such successor Trustee had
authenticated such Bonds. Upon request of any such successor Trustee, the Issuer
shall execute and deliver any and all instruments for more fully vesting in and
confirming to such successor Trustee all such rights, powers and trust.
Section 13.13. Right of Trustee To Pay Taxes and Other Charges.
In case any tax, assessment, governmental or other charge upon any part of
the Collateral is not paid as required herein, the Trustee may pay such tax,
assessment, governmental or other charge, without prejudice, however, to any
rights of the Trustee or the Holders arising in consequence of such failure; and
any amount at any time so paid under this Section 13.13, with interest thereon
from the date of payment at the rate determined by the Trustee, shall become so
much additional indebtedness secured by this Indenture, and the same shall be
given a preference in payment over any of the Bonds, and shall be paid out of
the proceeds or revenues collected from the Collateral, if not otherwise caused
to be paid; but the Trustee shall not be under any obligation to make any such
payment unless it shall have been requested to do so by the Holders of at least
twenty-five percent (25%) of the then Aggregate Outstanding Principal Amount of
the Bonds and shall have been provided with adequate funds for the purpose of
such payment.
Section 13.14. Co-Trustees and Separate Trustees.
(a) It is the purpose of this Indenture that there shall be no violation of
any law of any jurisdiction (including particularly the law of the State of New
York) denying or restricting the right of banking corporations or associations
to transact business as trustee in such jurisdiction. It is recognized that in
case of litigation under this Indenture, and in particular in case of the
enforcement thereof on the occurrence of a Default or Event of Default, or in
case the Trustee deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the powers, rights or remedies herein or
therein granted to the Trustee or hold title to the properties, in trust, as
herein Granted, or take any other action which may be desirable or necessary in
connection therewith, the Trustee may appoint, with notice to the Bondholders,
an additional individual or institution as a separate or Co-Trustee, in which
event each and every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this
Indenture to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate or Co-Trustee,
and every covenant and obligation necessary to the exercise thereof by such
separate or Co-Trustee shall run to and be enforceable by either of them.
(b) Should any deed, conveyance or instrument in writing from the Issuer be
required by the separate or Co-Trustee so appointed by the Trustee for more
fully and certainly vesting in and confirming to him or it such properties,
rights, powers, trusts, duties and obligations, any and all such deeds,
40
conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. In case any separate or Co-Trustee, or
a successor to either, shall die, become incapable of acting, resign or be
removed, all the estates, properties, rights, powers, trusts, duties and
obligations of such separate or Co-Trustee, so far as permitted by law, shall
vest in and be exercised by the Trustee until the appointment of a new
Co-Trustee or successor to such separate or Co-Trustee. Any Co-Trustee
previously appointed by the Trustee pursuant to this Section 13.14 may be
removed by the Trustee, or by the Bondholders to the same extent they may remove
the Trustee pursuant to Section 13.10, in which case all powers, rights and
remedies vested in the Co-Trustee shall again vest in the Trustee as if no such
appointment of a Co-Trustee had been made.
Section 13.15. Withholding Taxes.
Whenever it is acting as a paying agent for the Bonds, the Trustee shall
comply with all requirements of the Code, and all regulations thereunder, with
respect to the withholding from any payments made on such Bonds of any
withholding taxes imposed thereon and with respect to any reporting requirements
in connection therewith. Amounts properly withheld under the Code by any Person
from any payment to any Holders of interest and/or principal shall be considered
as having been paid by the Issuer to such Holder for all purposes of this
Indenture.
Section 13.16. Actions of Trustee.
The Trustee shall not take any affirmative actions which will impair the
interests of the Bondholders in the Collateral.
Section 13.17. Construction of Indenture.
The Trustee may construe any of the provisions of this Indenture insofar as
the same may appear to be ambiguous or inconsistent with any other provisions
hereof, and such construction by the Trustee of any such provisions hereof in
good faith shall be binding upon the Issuer and the Holders.
ARTICLE XIV
DEFAULTS AND REMEDIES
Section 14.01. Events of Default.
An "Event of Default," wherever used herein means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
41
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) The failure to pay any interest upon a Bond when same becomes due and
payable; and such default or failure shall continue for a period of thirty (30)
days or more; or
(b) The failure to pay any principal of or Redemption Price for a Bond when
the same becomes due and payable; or
(c) The entry of a decree or order by a court having jurisdiction in
respect of the Issuer adjudging the Issuer a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect to the Federal Bankruptcy Code or any other,
present or future, applicable federal or state now or hereafter in effect, or
appointing a receiver, liquidator, assignee, or sequestrator (or other similar
official) of the Issuer or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree, order or appointment unstayed and in effect for a period of sixty (60)
consecutive days; or
(d) The commencement by the Issuer of a proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings again it, or the filing by it of a petition or answer or
consent seeking relief under the Federal Bankruptcy Code or any other similar
applicable federal or state law, as now in effect, or the consent by it to the
filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee or sequestrator (or similar official) of the Issuer or of any
substantial part of its property or the making by it of a general assignment for
the benefit of creditors in connection therewith, or its inability to pay its
debts generally as they become due or the taking of corporate action by the
Issuer in furtherance of any such action; or
(e) The breach or default by the Issuer in the due observance or
performance of any other of its material covenants in this Indenture or the
breach by the Issuer of any material representation or warranty of the Issuer
made in this Indenture or any certificate or other writing delivered pursuant
hereto or in connection herewith with respect to the Bonds which breach or
default shall not have been cured or, in the case of a misrepresentation or
breach of warranty, the circumstance or condition shall not have been
eliminated, within thirty (30) days after written notice thereof shall have been
given, by registered or certified mail, to the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of Bonds representing at least a majority
of the Aggregate Outstanding Principal Amount of the Bonds, unless the Trustee,
or the Trustee and the Bondholders, representing not less than a majority of the
Aggregate Outstanding Principal Amount of Bonds which requested such notice, as
the case may be, shall agree, in writing, to an extension of such period prior
to its expiration; or
42
(f) The issuance of an order of a court or other body that invalidates,
subordinates or challenges the lien of this Indenture against the Collateral,
which becomes final.
Section 14.02. Actions on Default.
(a) If an Event of Default occurs and is continuing, the Trustee may, and
if directed to do so by the Holders representing more than fifty percent (50%)
of the then Aggregate Outstanding Principal Amount of the Bonds the Trustee
shall, declare the principal amount of all Bonds to be immediately due and
payable, by notice in writing to the Issuer (and to the Trustee if given by
Bondholders representing more than fifty percent (50%) of the then Aggregate
Outstanding Principal Amount of the Bonds) and, upon any such declaration, such
Bonds, in an amount equal to the unpaid principal amount of such Bonds, together
with accrued and unpaid interest thereon, to the date of such acceleration, if
any, shall become immediately due and payable. Such declaration, however, shall
not in and of itself require the Trustee to make any distributions under Section
14.09. In addition, upon such declaration the Trustee may, and upon direction by
the Holders as provided in Section 14.15 hereof, the Trustee shall, subject to
Section 13.01(a), exercise all other rights granted to it hereunder or such of
those rights as may be specified by the direction of such Bondholders; provided,
however, that nothing herein shall obligate the Trustee to advance its own
funds. All monies received by the Trustee as a result of actions taken by reason
of an Event of Default shall be applied in accordance with Article VII hereof,
except for monies received upon a sale of the Collateral following a declaration
of acceleration of the principal amount of the Bonds, which money shall be
applied as provided in Section 14.09 hereof.
(b) The provisions of the preceding paragraph are subject to the condition
that, at any time after a declaration of acceleration of the principal amount of
the Bonds has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders representing more than fifty percent (50%) of the then Aggregate
Outstanding Principal Amount of the Bonds, by written notice to the Issuer and
the Trustee, may rescind and annul such declaration and its consequences if:
(i) The Issuer has paid to or caused to be deposited with the Trustee
a sum sufficient to pay:
(A) all overdue installments of interest on all Bonds;
(B) the principal of any Bonds which has become due otherwise
than by such declaration of acceleration and interest thereon at the
rate borne by such Bonds to the date of payment;
43
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on the Bonds at the
rate borne by such Bonds to the date of payment; and,
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, fees, expenses, disbursements and advances of
the Trustee, its agents and counsel.
(ii) All Defaults and Events of Default then continuing, other than
the nonpayment of the principal of the Bonds which have become due solely
by such acceleration, have been cured or waived as provided in Section
14.16.
(c) No such rescission and amendment shall extend to or affect any
subsequent Event of Default or impair any right or remedy consequent thereon.
Section 14.03. Suits for Enforcement by Trustee.
Upon the occurrence and continuance of any Event of Default, then and in
every such case the Trustee may, subject to the provisions of Section 14.15
hereof, in its discretion, proceed to protect and enforce its rights and the
rights of the Bondholders by such appropriate Proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power Granted herein or therein, or to enforce any other
proper remedy.
Section 14.04. Other Remedies; Limitation on Remedies; Sale of Collateral.
(a) Subject to Sections 14.04(b), 14.06 and 14.15, if an Event of Default
shall have occurred and be continuing in respect to the Bonds and the Bonds have
been declared due and payable and such declaration and its consequences have not
been rescinded or annulled, the Trustee, in addition to those actions permitted
and authorized by Section 14.02 and 14.03, may do one or more of the following:
(i) institute Proceedings for the collection of all amounts then due
and payable on the Bonds under this Indenture, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Trust Estate
or Collateral securing the Bonds monies adjudged due and payable;
(ii) sell the Trust Estate or Collateral securing the Bonds or any
portion thereof or rights or interests therein, at one or more public or
private sales called and conducted in any manner permitted by law or this
Indenture;
44
(iii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate or
Collateral securing the Bonds;
(iv) by action or suit in equity require the Issuer to account as if
it were the trustee of an express trust for the Bondholders;
(v) by action or suit in equity enjoin any acts which may be unlawful
or in violation of the rights of the Bondholders;
(vi) exercise any remedies it may have as the secured party hereunder
or under the UCC or otherwise and take any other appropriate action to
protect and enforce the rights and remedies of the Trustee or the Holders
of the Bonds; and
(vii) exercise all other rights granted to the Trustee hereunder or by
law.
(b) The power to effect any sale of any portion of the Trust Estate or
Collateral pursuant and subject to this Section 14.04 is also subject to Section
14.06 and shall not be exhausted by any one or more sales as to any portion of
such Trust Estate remaining unsold, but shall continue unimpaired until the
entire Trust Estate or Collateral shall have been sold or all amounts payable on
the Bonds secured under this Indenture shall have been paid. The Trustee may
from time to time postpone any public sale by public announcement made at the
time and place of such sale. The Trustee hereby expressly waives its right to
any amount fixed by law as compensation for any sale, and shall receive in lieu
thereof, the compensation provided by Article XIII hereof.
(c) To the extent permitted by law, the Trustee shall not in any private
sale sell or otherwise dispose of the Trust Estate, or any portion thereof,
securing the Bonds which have been declared due and payable following an Event
of Default, unless:
(i) the Holders representing more than fifty percent (50%) of the then
Aggregate Outstanding Principal Amount of the Bonds consent to, or direct
the Trustee to make such sale,
(ii) the proceeds of such sale would be not less than the entire
amount which would be distributable to the Holders of the Bonds, in full
payment thereof in accordance with Section 14.09, and be sufficient to pay
the sums due the Trustee hereunder on the Payment Date next succeeding the
date of such sale, or
(iii) the Trustee determines, in its sole discretion, that the
conditions for retention of such Trust Estate set forth in Section
14.06(a)(i) and (iii) cannot be satisfied (in making any such
determination, the Trustee may obtain and rely upon an opinion of an
Independent investment banking firm as provided in Section 14.06(b)), and
the Holders of Bonds representing at least two-thirds (66-2/3%) of the then
Aggregate Outstanding Principal Amount of the Bonds consent to such sale.
45
(d) Upon a declaration of acceleration as provided in Section 14.02, but
subject to the provisions of Sections 14.04(b) and 14.06, by notice in writing
to the Issuer, the Trustee may, subject to applicable state and federal law,
sell the Collateral assigned as security hereunder, in whole or in part, through
one or more public or private sales, in such manner as the Trustee in its sole
discretion deems appropriate. The Collateral may be sold in its entirety, in one
transaction, in portions or from time to time as the Trustee deems appropriate;
provided, however, that at such time as the Trustee receives proceeds from the
sale of Collateral, net of all costs and expenses in connection therewith, in an
amount equal to the Aggregate Outstanding Principal Amount of the Bonds plus
accrued interest thereon to a date sixty (60) days after it has received such
proceeds, it need not, but may, make further sales of the Collateral. Nothing in
the preceding sentence however, shall be construed as limiting or restricting
the Trustee's right to sell the Collateral and/or collect proceeds from such
sales in an amount in excess of such amount. The Trustee shall give the Issuer
twenty (20) days' written notice of any proposed sale or other disposition of
the Collateral, with a copy thereof to be delivered to each Holder. The Trustee
shall use reasonable efforts to complete any sale of the Collateral in a timely
fashion. Proceeds from such sale shall be applied by the Trustee in accordance
with Section 15.09. In addition, the Trustee is hereby authorized and empowered
to execute and deliver on behalf of the Issuer as its attorney-in-fact, or
otherwise, any and all documents or instruments and to do or accomplish all acts
or things that are necessary or appropriate to effect the sale of the
Collateral.
(e) The Issuer and the Trustee acknowledge that the Trustee may be unable
to effect a sale to the public of all or any part of the Collateral by reason of
certain prohibitions or restrictions in federal or state laws and regulations,
and therefore may be compelled to resort to one or more sales to a restricted
group of purchasers in a negotiated sale. The Issuer and the Trustee also
acknowledge that a negotiated sale may not provide for maximum realization on
the value of the Collateral. The Issuer agrees that any sale so made may be at
prices and terms less favorable than if the Collateral were sold to the public.
The Issuer agrees that such negotiated sales, whether for cash or credit, made
under the foregoing circumstances shall not be deemed for that reason to have
been made in a commercially unreasonable manner; provided, however, that the
Trustee shall have used reasonable efforts to obtain the best price from the
sale of the Collateral consistent with the need to provide for prompt payment of
the Bonds following a declaration of acceleration. The Trustee is authorized to
comply with any restriction or limitation as it may be advised by an Opinion of
Counsel to the Trustee is necessary or desirable in order to avoid any required
approval by any government or regulatory board or officer, and it is agreed that
such compliance shall not result in such sale being considered to have been made
in a commercially unreasonable manner, nor shall the Trustee be liable or
accountable to the Issuer or any Bondholder by reason of the fact that the
proceeds obtained at such sale are less than what might otherwise have been
obtained, provided the Trustee has met the requirements of this Section 14.04.
46
(f) The Trustee may bid for and acquire any portion of the Collateral in
connection with the public sale thereof and, in lieu of paying cash therefor,
may make settlement for the purchase price by paying the net sale price, after
deducting therefrom the expenses of the sale and of any Proceedings in
connection therewith, into the Trust Estate for application pursuant to Section
14.09. The Bonds need not be produced in order to complete any such sale or in
order for the net sale price to be credited against such Bonds. The Trustee may
hold, lease, operate, manage or otherwise deal with any property so acquired in
any manner permitted by law.
(g) All monies received from the sale of Collateral pursuant to this
Article XIV, after payment of all fees and expenses in connection therewith,
shall be deposited by the Trustee in the Debt Service Fund for application as
provided in Section 14.09.
(h) The Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of such Trust Estate in
connection with a sale thereof;
(i) The Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey the Issuer's interest in
any portion of such Trust Estate in connection with a sale thereof, and to take
all action necessary to effect such sale; and
(j) No purchaser or transferee at such a sale shall be bound to ascertain
the Trustee's authority, inquire into the satisfaction of any conditions
precedent or determine the application of any monies.
Section 14.05. Other Rights and Remedies.
(a) In addition to its rights and remedies otherwise granted by this
Article XIV following an Event of Default, but subject to Sections 14.04(b) and
14.06, the Trustee may exercise all rights and remedies available to a secured
party under the UCC and take whatever other action at law or in equity which
appears necessary or desirable to collect the amount then due and thereafter to
become due under this Indenture or the Collateral, to seek damages, or to
enforce performance and observance of any obligation, agreement or covenant of
the Issuer under this Indenture or the Bonds. Such actions include, but are not
limited to, obtaining the appointment of a receiver, injunction, specific
performance and collecting all monies due or payable with respect to Collateral
directly from the Persons obligated for such payments.
(b) Notwithstanding anything to the contrary in this Article XIV, if an
Event of Default has occurred as a result of an order or judgment arising out of
a Proceeding, which order or judgment prevents the application by the Trustee of
the proceeds of one or more items of Collateral included in the Trust Estate, as
47
provided in this Indenture, the Trustee may exercise one or more of the remedies
set forth in this Article XIV solely with respect to such item of such
Collateral.
Section 14.06. Optional Preservation of Trust Estate.
(a) If the Bonds have been declared due and payable following an Event of
Default and such acceleration has not been rescinded and annulled, the Trustee
may, in its sole discretion and to the extent permitted by applicable law,
refrain from selling the Trust Estate securing the Bonds and may apply all
distributions and other amounts receivable with respect to such Trust Estate to
the payment of the principal of, premium, if any, and interest on the Bonds as
and when such principal and interest would have become due pursuant to the terms
hereof and of the Bonds if there had not been an acceleration of the maturity of
such Bonds, provided that:
(i) the Trustee shall have determined that the distributions and other
amounts receivable with respect to the Trust Estate are sufficient to
provide the funds required to pay the principal of, premium, if any, and
interest on such Bonds as and when such principal and interest would have
become due pursuant to the terms hereof and of the Bonds and Trustee fees
if there had not been an acceleration of the maturity of such Bonds;
(ii) the Holders of the Bonds shall not have directed the Trustee in
accordance with Section 14.15 (subject, however, to Section 14.04) to sell
the Trust Estate securing such Bonds;
(iii) the Trustee shall have delivered written notice to the Issuer
that it proposes to retain the Trust Estate in satisfaction of the Issuer's
obligations hereunder and either twenty-one (21) days shall have elapsed
from the date the notice was sent during which the Issuer shall have failed
to object in writing to the Trustee's taking such action or the Issuer
shall have delivered to the Trustee an agreement in writing consenting to
the Trustee's taking such action pursuant to this Section 14.06.
(b) The Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking firm of national reputation as to the feasibility
of any action proposed to be taken in accordance with subsection (a) of this
Section 14.06 and as to the sufficiency of the distributions and other amounts
receivable with respect to the Trust Estate securing the Bonds to make the
required payments of principal of, premium, if any, and interest on the Bonds,
which opinion shall be conclusive evidence as to such feasibility or
sufficiency.
(c) Until the conditions of clauses (i) through (iii) of subsection (a) of
this Section 14.06 are satisfied with respect to the Bonds that have been
declared due and payable following an Event of Default or until the Trustee
determines to take the action specified in said subsection (a), all amounts
48
collected by the Trustee with respect to the Bonds pursuant to this Article XIV
or otherwise shall be applied in accordance with Section 14.06(a) and thereafter
shall be applied in accordance with Section 14.09; provided, however, that if
the Trustee shall have acquired the entire Trust Estate securing the Bonds by
purchasing it at any public or private sale conducted pursuant to Section 14.04,
the Trustee may, in its sole discretion and to the extent permitted by
applicable law, apply all distributions and other amounts receivable with
respect to such Trust Estate pursuant to Section 14.06(a), if the Trustee
determines that the conditions set forth in Section 14.06(a)(i) and (iii) are
satisfied and if the Trustee obtains an Opinion of Counsel to the effect that:
(i) such Trust Estate will not as a result of such action be deemed an
association taxable as a corporation under the Code and (ii) notwithstanding the
acquisition of such Trust Estate by the Trustee, the rights, powers and duties
of the Trustee with respect to such Trust Estate (or the proceeds thereof) and
the related Bondholders, and the respective rights of such Bondholders shall
continue to be governed by the terms of this Indenture.
(d) Notwithstanding anything in this Indenture to the contrary, if the
Bonds have been declared due and payable, then the Trustee may, in its sole
discretion and to the extent permitted by applicable law, retain the Trust
Estate securing the Bonds without compliance with this Section 14.06 and apply
all distributions and other amounts receivable with respect to such Trust Estate
to the payment of principal, premium, if any, and interest on the Bonds as and
when such principal and interest would have become due pursuant to the terms
hereof and of the Bonds if there had not been an acceleration of the maturity of
the Bonds; provided, however, that if the Trustee is unable to make the
determination required by Section 14.06 (a) (i), in respect of which
determination the Trustee may act pursuant to Section 14.06(b), any money held
or collected by the Trustee with respect to the Bonds shall be applied pursuant
to Section 14.09.
Section 14.07. Trustee May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, composition or other judicial
Proceeding relative to the Trust Estate, the Issuer, or any other obligor upon
any of the Bonds or the property of the Trust or of such other obligor or their
creditors, the Trustee (irrespective of whether the Bonds shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
any overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise, to:
(i) file and prove a claim for the whole amount of principal, premium,
if any, and interest owing and unpaid in respect of the Bonds issued
hereunder and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, which shall constitute administrative
expense in any such Proceeding) and of the Bondholders allowed in such
Proceedings,
49
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Bonds in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency Proceedings or person performing similar functions
in comparable Proceedings, and
(iii) collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any
receiver, assignee, trustee, liquidator, or sequestrator (or other similar
official) in any such Proceeding is hereby authorized by each Bondholder 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 Bondholders, 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 13.07.
(b) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Bondholder any plan
of reorganization, arrangement, adjustment or composition affecting the Bonds or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
to the claim of any Bondholder in any such Proceeding.
Section 14.08. Trustee May Enforce Claims Without Possession of Bonds.
All rights of action and claims under this Indenture or the Bonds may be
prosecuted and enforced by the Trustee without the possession of any of the
Bonds or the production thereof in any Proceeding relating thereto, and any such
Proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable expenses, disbursements and advances of the Trustee,
its agents and Counsel, be for the ratable benefit of the Holders of the Bonds
in respect to which such judgment has been recovered. In any Proceedings brought
by the Trustee (and also any Proceedings involving the interpretation of any
provision of this Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Bonds parties to any such
Proceedings.
Section 14.09. Application of Monies.
(a) Any property and monies on deposit and held by the Trustee with respect
to the Bonds, pursuant to this Indenture, including monies collected pursuant to
a sale or other disposition of the Collateral and monies to be collected
pursuant to Section 14.04 and the net amounts recovered pursuant to Section
14.08, but not including monies received pursuant to Section 14.06 (which shall
be applied as provided in Article VII) shall be applied in the following order,
at the date or dates fixed by the Trustee:
50
FIRST: To the payment of all amounts due the Trustee under Section 13.07
and any other Administrative Expenses due and payable;
SECOND: To the payment of interest on the Outstanding Bonds at the Bond
Interest Rate, and, to the extent permitted by law, interest on overdue interest
on the Bonds, at the Bond Interest Rate, ratably, without preference or priority
of any kind among Holders of Bonds;
THIRD: To the payment of principal and premium, if any, of the Outstanding
Bonds, ratably, without preference or priority of any kind among Holders of
Bonds;
FOURTH: To the Issuer, all remaining funds, if any, or any other person
legally entitled thereto.
(b) Whenever monies are to be applied pursuant to the provisions of this
Section 14.09, such monies shall be applied at such times and from time to time
as the Trustee shall determine, having due regard to the amount of such monies
available for application and the likelihood of additional monies becoming
available for such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date which shall be a Payment Date (unless it shall
deem another date more suitable) upon which such application is to be made and
upon such date interest on the amounts of principal and interest to be paid on
such date shall cease to accrue. The Trustee shall give notice of the deposit
with it of any such monies and of the fixing of any such date by mail to all
Bondholders and shall not be required to make payment to any Bondholders until
such Bond shall be presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Section 14.10. Limitation on Suits.
No Holder of any Bond shall have any right to institute any Proceedings,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder or Holders have previously filed written notice with
the Trustee of a continuing Event of Default and such notice specifies the
nature of Default;
(ii) the Holder or Holders representing more than fifty percent (50%)
of the then Aggregate Outstanding Principal Amount of the Bonds shall have
filed a written request with the Trustee to institute Proceedings in
respect to such Event of Default in its own name as Trustee hereunder;
51
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity and security against the costs, expenses and liabilities to be
incurred in compliance with such request;
(iv) the Trustee for thirty (30) days after receipt of such notice,
request and offer of indemnity and security by a Responsible Officer has
failed to institute any such Proceeding; and
(v) no direction inconsistent with such written request has
been given to the Trustee during such thirty (30) day period by the
Holder or Holders representing more than fifty percent (50%) of the
then Aggregate Outstanding Principal Amount of the Bonds;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders of the Bonds.
Section 14.11. Unconditional Rights of Bondholders To Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Bond shall have the right permitted by applicable law, which right is absolute
and unconditional, to receive payment of the principal of, premium, if any, and
interest on such Bond on the respective dates and as and when such payments are
due (or, in the case of any Bond called for partial Redemption) and to institute
suit for enforcement, subject to the terms of this Indenture, of any such
payment, and such right shall not be impaired or affected without the consent of
such Holder.
Section 14.12. Restoration of Rights and Remedies.
If the Trustee or any Bondholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Bondholder, then and in every such case the Issuer, the
Trustee and the Bondholders shall, subject to any determination in such
Proceeding, be restored severally and respectively to their former legal
positions hereunder, and thereafter all rights and remedies granted herein to
the Trustee and the Bondholders shall continue as though no such Proceeding had
been instituted.
52
Section 14.13. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Bondholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 14.14. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Bond to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article XIV or by law
to the Trustee or to the Bondholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Bondholders, as the
case may be.
Section 14.15. Control by Bondholders.
With respect to acceleration of the principal amount of the Bonds, the
Holders of Bonds representing more than fifty percent (50%) of the then
Aggregate Outstanding Principal Amount of the Bonds shall have the right to
direct the time, method and place of conducting any Proceeding for any remedy
available to the Trustee hereunder or exercising any trust or power conferred on
the Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture; and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; provided, however, that, subject
to Section 13.01, the Trustee need not take any action which it determines might
involve it in liability or be unjustly prejudicial to the Bondholders not
consenting thereto.
Section 14.16. Waiver of Past Defaults.
The Holders of Bonds representing more than fifty percent (50%) of the then
Aggregate Outstanding Principal Amount of the Bonds may waive, on behalf of the
Holders of all the Bonds, any past Default hereunder and its consequences,
except a Default:
(a) in the payment of the principal of or interest on any Bond, or
Trustee's fees and expenses;
53
(b) in respect to a covenant or provision hereof which, under Section
15.02, cannot be modified or amended without the consent of the Holder of each
Outstanding Bond affected; or
(c) in actions which deprive the Trustee or any Holder of a lien upon any
of the Collateral or the Trust Estate.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 14.17. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Bond by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may,
in its discretion, assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the Trustee shall not be required to pay any such costs of another
party litigant unless the Trustee is found by the court to have acted in a
manner imposing liability upon the Trustee under Section 13.01 (c); and,
provided further, that the provisions of this Section 14.17 shall not apply to
any Bondholder, or group of Bondholders, holding in the aggregate more than
fifty percent (50%) of the Aggregate Outstanding Principal Amount of the Bonds,
or to any suit instituted by any Bondholder for the enforcement of the payment
of the principal of, premium, if any, or interest on any Bond on or after the
respective maturities or Payment Dates expressed in such Bond (or, in the case
of any Bond called for Redemption, on or after the applicable Redemption Date).
Section 14.18. Waiver of Stay or Extension Law.
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants in, or the
performance of, this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein or therein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
54
Section 14.19. Action on Bonds.
The Trustee's right to seek and recover judgment on the Bonds or under this
Indenture shall not be affected by the seeking, obtaining or application of any
other relief under or with respect to this Indenture. Neither the lien of this
Indenture nor any rights or remedies of the Trustee or the Bondholders shall be
impaired by the recovery of any judgment by the Trustee or by the levy of any
execution under such judgment upon any portion of the Trust Estate or the
Collateral.
Section 14.20. Trust Estate.
(a) The Trustee may, and when required by the provisions of this Indenture
shall, execute instruments to release property or Collateral from the lien of
this Indenture, or convey the Trustee's interest in the same, in a manner and
under circumstances which are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Trustee as
provided in this Article XIV shall be bound to ascertain the Trustee's
authority, inquire into the satisfaction of any conditions precedent or
determine the application of any monies.
(b) The Trustee shall, at such time as all the conditions to the
satisfaction and discharge of this Indenture required to be fulfilled under
Section 10.01 with respect to all the Bonds have been fulfilled, release the
Trust Estate and Collateral securing such Bonds from the lien of this Indenture.
Section 14.21. Opinion Of Counsel.
In connection with any action to be taken pursuant to this Article XIV, the
Trustee shall also be entitled to request, if deemed reasonably necessary by the
Trustee, and to rely upon, an Opinion of Counsel, in form and substance
satisfactory to the Trustee, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding that such
action will not materially and adversely impair the security for the Bonds or
the rights of the Bondholders in contravention of the provisions of this
Indenture.
ARTICLE XV
SUPPLEMENTAL INDENTURES
Section 15.01. Supplemental Indenture Without Consent of Bondholders.
Without the consent of the Holder of any Bonds, the Issuer and, when
authorized by an Issuer Order, the Trustee, at any time and from time to time,
may enter into one or more Supplements hereto, in form satisfactory to the
Trustee, for any of the following purposes:
55
(a) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and confirm
unto the Trustee any property subject or required to be subjected to the lien of
this Indenture, or to subject to the lien of this Indenture additional property;
(b) to grant any property to the Trustee;
(c) to evidence the succession of another Person to the Issuer, and the
assumption by any such successor of the covenants, representations and
warranties of the Issuer herein and in the Bonds contained;
(d) to add to the covenants of the Issuer, for the benefit of the Holders
of all Bonds, or to surrender any right or power herein conferred upon the
Issuer;
(e) to cure any ambiguity, to correct or supplement any provision herein,
or in any Supplement which may be defective or inconsistent with any other
provision herein, or in any Supplement, or to add or amend any other provisions
with respect to matters or questions arising under this Indenture, which shall
not be inconsistent with the provisions of this Indenture; provided that such
action shall not adversely affect the interests of the Holders of the Bonds; or
(f) to modify, eliminate or add to the provisions of this Indenture to such
extent as shall be necessary and required to effect the qualification of this
Indenture under TIA or under any similar federal statute hereafter enacted, and
to add to this Indenture such other provisions as may be expressly required by
TIA.
Section 15.02. Supplemental Indenture With Consent of Bondholders.
(a) With the consent of the Holders representing not less than two-thirds
(66-2/3%) of then Aggregate Outstanding Principal Amount of the Bonds, by Act of
said Holders and the consent of the Issuer, when authorized by an Issuer Order,
the Trustee may enter into one or more Supplements hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such Supplement shall,
without the consent of the Holder of each Outstanding Bond affected thereby:
(i) change the Stated Maturity or Redemption provisions of any Bond,
or reduce the principal amount thereof or the rate of interest thereon or
change any place of payment where, or the coin or currency in which, any
Bond or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of Redemption, on or after the applicable
Redemption Date);
56
(ii) reduce the percentage of the then Aggregate Outstanding Principal
Amount of the Bonds, the consent of the Holders of which is required for
any such Supplement, or the consent of the Holders of which is required for
any waiver of compliance with provisions of this Indenture or Defaults
hereunder and their consequences provided for in this Indenture;
(iii) modify any of the provisions of Section 14.15 or Section 14.16,
except to increase any percentage specified therein or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Bond affected
thereby;
(iv) modify or alter the provisions of the definition of the term
"Outstanding";
(v) impair or adversely affect the Trust Estate or the Collateral
except as otherwise permitted herein;
(vi) change the percentage required to direct the Trustee to sell or
liquidate the Trust Estate or Collateral pursuant to Sections 14.04 and
14.06; or
(vii) create any liens on the Collateral ranking prior to or on parity
with the lien of the Indenture, or terminate, or deprive a Holder of the
security of, the lien of the Indenture on the Collateral.
(b) It shall not be necessary for any Act of Bondholders under this Section
15.02 to approve the particular form of any proposed Supplement, but it shall be
sufficient if such Act shall approve the substance thereof.
(c) As promptly as practical after the execution by the Issuer and the
Trustee of any Supplement pursuant to this Section 15.02, the Trustee shall mail
to the Holders a notice setting forth in general terms the substance of such
Supplement. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
Supplement.
Section 15.03. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any Supplemental
Indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee may request, shall be entitled to
receive, and (subject to Section 13.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such Supplemental
57
Indenture is authorized and permitted by this Indenture. The Trustee may, but
shall not (except to the extent required in the case of a supplemental indenture
entered into under Section 15.01(f)) be obligated to, enter into any such
Supplement which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 15.04. Effect of Supplemental Indentures.
Upon the execution of any Supplement under this Article XV, this Indenture
shall be modified in accordance therewith, and such Supplement shall form a part
of this Indenture for all purposes; and every Holder of Bonds theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 15.05. Reference in Bonds to Supplemental Indentures.
Bonds authenticated and delivered after the execution of any Supplement
pursuant to this Article XV may, and if required by the Issuer shall, bear a
notation in form approved by the Trustee as to any matter provided for in such
Supplement. If the Issuer shall so determine, new Bonds so modified as to
conform, in the opinion of the Issuer, to any such Supplement may be prepared
and executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Bonds.
ARTICLE XVI
BONDHOLDERS' ACTIONS; BONDHOLDERS' LISTS AND REPORTS
Section 16.01. Exercise of Rights of Trustee and Bondholders Not To Be Hindered
or Delayed.
Nothing contained in this Article XVI shall be construed to authorize or
permit, by reason of the scheduling by the Issuer, the Trustee or the
Bondholders of a meeting of Bondholders or any rights expressly or impliedly
conferred hereunder to schedule such a meeting, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Bondholders under any of the provisions of this Indenture or of the Bonds.
Section 16.02. Communications to Bondholders.
(a) The Trustee shall preserve, in as current form as is reasonably
practical, the names and addresses of the Holders of Bonds contained in the Bond
Register.
(b) If the Holders representing not less than twenty five percent (25%) of
the then Aggregate Outstanding Principal Amount of the Bonds ("Applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each Applicant has owned a Bond for a period of at least six (6) months
58
preceding the date of such application, or since the date of the original
issuance of the Bonds, and such application states that the Applicants desire to
communicate with other Bondholders with respect to the rights under this
Indenture or under the Bonds and is accompanied by a copy of the form of proxy
or other communication which the Applicants propose to transmit, then the
Trustee shall, within five (5) Business Days after the receipt of such
application by a Responsible Officer:
(i) afford the Applicants access to the information preserved at that
time by the Trustee in accordance with Section 16.02 (a); or
(ii) if release of such information pursuant to clause (i) above would
violate any provision of law applicable to the Trustee, inform the
Applicants as to the approximate number of Holders of Bonds whose names and
addresses appear in the information preserved at the time by the Trustee in
accordance with Section 16.02 (a) and as to the approximate cost of mailing
to such Bondholders the form of proxy or other communication, if any,
specified in such application.
(c) If the Trustee shall, pursuant to clause (ii) above, not afford the
Applicants access to such information, the Trustee shall, upon written request
of the Applicants, mail to each Bondholder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
16.02 (a) a copy of the form of proxy or other communication which is specified
in such request with reasonable promptness after a tender to the Trustee of the
material to be mailed and a payment of the reasonable expenses of mailing as
specified by the Trustee pursuant to clause (ii) above.
(d) Every Holder of a Bond, by receiving and holding the same, agrees with
the Issuer and Trustee that neither the Issuer nor the Trustee shall be held
accountable by reason of disclosure of such information as to the names and
addresses of Bondholders in accordance with Section 16.02(b) regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 16.02(b).
Section 16.03. Reports by Trustee.
The Trustee is required to mail within sixty (60) days after December 31 of
each year (the "Trustee Annual Report"), commencing in December 2000, to all
registered Holders of Bonds a brief report relating to its eligibility and
qualifications to continue as the Trustee under the Indenture, the amount,
interest rate and maturity date of certain indebtedness owing by the Issuer to
the Trustee in the Trustee's individual capacity, the property and funds
relating to the Bonds physically held by the Trustee as such, the release, or
release and substitution, of any property relating to the Bonds subject to the
lien of Indenture, and any action taken by it that materially affects the Bonds
or the Collateral for the Bonds and that has not been previously reported.
59
Section 16.04. Reports by Issuer.
The Issuer shall file or cause to be filed with the Trustee, for mailing to
the Bondholders, within fifteen (15) days after its year-end financial
statements have been completed which completion shall be within one hundred and
twenty days (120) of the end of the Issuer's fiscal year, financial statements,
which need not be audited, containing a balance sheet, income statement,
statement of cash flows and notes thereto, prepared in accordance with generally
accepted accounting principles consistently applied, and certified by the
President and the Chief Financial Officer of the Issuer.
ARTICLE XVII
MISCELLANEOUS
Section 17.01. Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Indenture, the Issuer shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and, if requested by the Trustee, an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including one furnished
pursuant to specific requirements of this Indenture relating to a particular
application or request) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) at statement that, in the opinion of each such individual, 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
60
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 17.02. Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an authorized officer or officers of the
Issuer, or a Person designated as its agent by the Issuer, stating that the
information with respect to such factual matters is in the possession of the
Issuer or such Person, unless such officer or counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous. Any Opinion of
Counsel may be based on the written opinion of other counsel, in which event,
such Opinion of Counsel shall be accompanied by a copy of such other counsel's
opinion and shall include a statement to the effect that such counsel believes
that such counsel and the Trustee may reasonably rely upon the opinion of such
other counsel.
(c) Where any Person is required to make, give or execute two (2) or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one (1) instrument.
(d) Wherever in this Indenture, in connection with any application, or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such application or at
the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in Section
13.01.
61
(e) Whenever in this Indenture it is provided that the absence of the
occurrence and continuation of a Default or Event of Default is a condition
precedent to the taking of any action by the Trustee at the request or direction
of the Issuer, then notwithstanding that the satisfaction of such condition is a
condition precedent to the Issuer's right to make such request or direction, the
Trustee shall be protected in acting in accordance with such request or
direction if it does not have knowledge of the occurrence and continuation of
such Default or Event of Default as provided in Section 13.01.
Section 17.03. Acts of Bondholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Bondholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Bondholders in person or by an agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Bondholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 13.01) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner the Trustee deems sufficient; provided,
that any execution acknowledged and certified by a notary public shall be
presumptively valid.
(c) The ownership of Bonds shall be proved by the Bond Register, to be
maintained by the Trustee as the Bond Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Bonds shall bind the Holder of every Bond
issued upon the registration of transfer thereof or in exchange thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Issuer in reliance thereon, whether or
not notation of such action is made upon Bonds.
Section 17.04. Notices to Trustee and Issuer.
Except as otherwise provided in this Indenture, all notices, certificates,
requests, demands, authorizations, directions, consents, waivers or other
correspondence provided or permitted by this Indenture shall be sufficiently
given if delivered by telegraph, telecopy, telex or other similar communications
or in writing and delivered in person, or mailed by registered mail, postage
prepaid, addressed as follows:
62
If to the Issuer: Xxxxxx Resources, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President
With a Copy to: Xxxxxxxx & Xxxxxxxx
Four Stamford Plaza
Stamford, CT 06904
Attention: Xxxxx Xxxxxxx, Esq.
If to the Trustee: Continental Stock Transfer & Trust Company
0 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
With a Copy to: Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Any of the foregoing may, by notice given hereunder to each of the others,
designate any further or different addresses to which subsequent notices,
certificates, requests or other communications shall be sent hereunder.
Section 17.05. Notices and Reports to Bondholders; Waiver of Notices.
(a) If this Indenture provides for notice to Bondholders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if delivered by telegraph, telecopy, telex or other similar communications or in
writing and mailed, first-class registered or certified mail, postage prepaid,
to each Bondholder affected by such event, at his address as it appears on the
Bond Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Bondholders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Bondholder shall affect the
sufficiency of such notice with respect to other Bondholders. Any notice which
is given in the manner herein provided shall conclusively be presumed to have
been duly given whether or not actually received by such Bondholder.
(b) If this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
63
Waivers of notice by Bondholders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
(c) If regular mail service is suspended as a result of a strike, work
stoppage, act of God, or similar activity, the Trustee shall deem it impractical
to mail notice of any event to Bondholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 17.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for any meeting of Bondholders. Any
Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 17.07. Effect of Heading and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 17.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer or the Trustee
shall bind their respective successors and assigns, whether so expressed or not.
Section 17.09. Separability.
In case any provision in this Indenture or in the Bonds shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof or of the Bonds shall not in any way be affected or
impaired thereby.
Section 17.10. Benefits of Indenture.
Nothing in this Indenture or in the Bonds, expressed or implied, shall give
to any Person, other than the parties hereto and their successors hereunder and
the Bondholders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 17.11. Legal Holidays.
If any Payment Date, Redemption Date or any other date on which principal
of, premium, if any, or interest on any Bond is proposed to be paid or the date
upon which any report is to be given hereunder shall not be a Business Day, then
(notwithstanding any other provision of the Bonds or this Indenture) the payment
or report need not be made on such date, but may be made on the next succeeding
64
Business Day with the same force and effect as if made on the nominal date of
any such Payment Date, Redemption Date, or other date for the payment of
principal of or interest on any Bond or date for a report hereunder, as the case
may be, and no interest shall accrue for the period from and after any such
nominal date.
Section 17.12. Governing Law.
In view of the fact that Bondholders are expected to reside and maintain
offices in many states and the desire to establish with certainty that this
Indenture will be governed by and construed and interpreted in accordance with
the law of a state having a well-developed body of commercial and financial law
relevant to transactions of the type contemplated herein, this Indenture, each
Supplement, if any, and each Bond shall be construed in accordance with and
governed by the laws of the State of New York applicable to agreements made and
to be performed herein. Any action or proceeding of any kind brought upon or
with respect to this Indenture shall be brought in the appropriate state or
federal court in New York County, New York.
Section 17.13. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 17.14. Issuer Obligation.
No recourse may be taken, directly or indirectly, against the Trustee or
any incorporator, subscriber to the capital stock, stockholder, officer,
director or employee of the Trustee or any predecessor or successor of the
Trustee with respect to the Issuer's obligations with respect to the Bonds or
the obligation of the Issuer or the Trustee under this Indenture or any
certificate or other writing delivered in connection herewith or therewith.
Section 17.15. Inspection.
The Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Trustee, during the Issuer's normal business hours, to
examine all of the books of account, records, reports and other papers of the
Issuer, to make copies and extracts therefrom, to cause such books to be audited
by Independent Accountants selected by the Trustee, and to discuss its affairs,
finances and accounts with its officers, employees and Independent Accountants
(and by this provision the Issuer hereby authorizes its Accountants to discuss
with such representatives such affairs, finances and accounts), all at such
reasonable times and as often as may be reasonably requested. Any expense
incident to the exercise by the Trustee of any right under this Section shall be
borne by the Issuer.
65
Section 17.16. Alternate Payment Provisions.
Notwithstanding any provision of this Indenture or of any of the Bonds to
the contrary, the Issuer may enter into any agreement with the relevant paying
agent and any Bondholder providing for a method of payment by such paying agent
to such Holder that is different from the methods provided for in this Indenture
for such payment. The Issuer will furnish to the paying agent a copy of each
such agreement and the paying agent will cause payments to be made in accordance
with such agreements. Such agreements, however, shall not be binding upon any
successor paying agent without the prior written consent of such successor
paying agent.
Section 17.17. Usury.
The amount of interest payable or paid on any Bond under the terms of this
Indenture shall be limited to an amount which shall not exceed the maximum
nonusurious rate of interest allowed by the applicable laws of the United States
or the State of New York (whichever shall permit the higher rate), which could
lawfully be contracted for, charged or received (the "Highest Lawful Rate"). In
the event any payment of interest on any Bond exceeds the Highest Lawful Rate,
the Issuer stipulates that such excess amount will be deemed to have been paid
as a result of an error on the part of both the Trustee, acting on behalf of the
Bondholder, and the Issuer, and the Holder receiving such excess payment shall
promptly, upon discovery of such error or upon notice thereof from the Issuer or
the Trustee, refund the amount of such excess or, at the option of the Trustee,
apply the excess to the payment of principal of such Bond, if any, remaining
unpaid. In addition, all sums paid or agreed to be paid to the Trustee for the
benefit of Bondholders for the use, forbearance or detention of money shall, to
the extent permitted by applicable law and subject to the terms thereof, be
amortized, prorated, allocated and spread through the full term of such Bonds.
IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Indenture
to be duly executed by their respective officers thereunto duly authorized and
duly attested, to be hereunto affixed, as of the day and year first above
written.
XXXXXX RESOURCES, INC.,
ATTEST: Issuer
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
Title: Senior Vice President
and Chief Financial Officer
66
ATTEST: CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, Trustee
By: /s/ X. X. Xxxxx
--------------------------------
Title: Vice President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State and County, duly
commissioned and qualified, personally appeared Xxxxxxx X. Xxxxxx, to me known
(or proved to me on the basis of satisfactory evidence) to be the person
described in and who executed the foregoing instrument, who acknowledged that he
was the duly elected Vice President and Chief Financial Officer of Xxxxxx
Resources, Inc., a corporation, and that he executed the foregoing instrument on
behalf of such corporation, being duly authorized to do so.
WITNESS my hand and Notarial Seal at office this 28th day of December 2000.
Notary Public /s/ Xxxxxx X. Xxxxxxx
My Commission Expires: 10/05/2002
