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XXXXXXXXX
XXXXXXXXX MOBILE FUELING, INC.
AND
AMERICAN NATIONAL BANK
DATED AS OF JANUARY 25, 2005
$6,100,000
10% SENIOR SECURED NOTES DUE JANUARY 24, 2010
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
1.1 Definitions..........................................................1
1.2 Other Definitions....................................................3
1.3 Rules of Construction................................................4
ARTICLE II
THE SECURITIES
2.1 Form and Dating......................................................4
2.2 Agents...............................................................4
2.3 Paying Agent and Trustee to Hold Money in Trust......................4
2.4 Holder Lists.........................................................5
2.5 Transfer and Exchange................................................5
2.6 Outstanding Notes....................................................5
2.7 Treasury Notes Disregarded for Certain Purposes......................6
2.8 Cancellation.........................................................6
ARTICLE III
REDEMPTION
3.1 Notice to Trustee....................................................6
3.2 Selection of Notes to be Redeemed....................................6
3.3 Notice of Redemption.................................................6
3.4 Deposit of Redemption Price..........................................6
3.5 Notes Redeemed in Part...............................................7
ARTICLE IV
COVENANTS
4.1 Payment of Notes.....................................................7
4.2 SEC Reports..........................................................7
4.3 Compliance Certificate...............................................7
4.4 Notice of Certain Events.............................................7
ARTICLE V
SUCCESSORS
5.1 When Company May Merge, etc..........................................8
5.2 Successor Corporation Substituted....................................8
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ARTICLE VI
DEFAULTS AND REMEDIES
6.1 Acceleration.........................................................9
6.2 Notice of Defaults...................................................9
6.3 Other Remedies.......................................................9
6.4 Control by Two-Thirds Majority.......................................9
6.5 Limitation on Suits..................................................9
6.6 Rights of Holders To Receive Payment................................10
6.7 Priorities..........................................................10
6.8 Undertaking for Costs...............................................11
6.9 Proof of Claim......................................................11
6.10 Actions of a Holder.................................................11
ARTICLE VII
OTHER DISTRIBUTIONS
7.1 Priorities..........................................................11
ARTICLE VIII
TRUSTEE
8.1 Duties of Trustee...................................................12
8.2 Rights of Trustee...................................................13
8.3 Individual Rights of Trustee; Disqualification......................13
8.4 Trustee's Disclaimer................................................13
8.5 Compensation and Indemnity..........................................13
8.6 Replacement of Trustee..............................................15
8.7 Successor Trustee by Merger, etc....................................15
ARTICLE IX
SATISFACTION AND DISCHARGE
9.1 Satisfaction and Discharge of Indenture.............................16
9.2 Application of Trust Funds..........................................16
9.3 Reinstatement.......................................................17
9.4 Repayment to Company................................................17
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ARTICLE X
AMENDMENTS
10.1 Without Consent of Holders..........................................17
10.2 With Consent of Holders.............................................17
10.3 Compliance with Trust Indenture Act and Section 12.3................18
10.4 Revocation and Effect of Consents and Waivers.......................18
10.5 Notice of Amendment; Notation on or Exchange of Notes...............19
10.6 Trustee Protected...................................................19
ARTICLE XI
SUBORDINATION
11.1 Notes Subordinated to Senior Debt...................................19
11.2 Notes Subordinated in Any Proceeding................................19
11.3 No Payment on Notes in Certain Circumstances........................19
11.4 Obligations of the Company Unconditional............................19
11.5 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice................................................20
11.6 Satisfaction and Discharge..........................................20
11.7 Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt............................20
11.8 No Fiduciary Duty of Trustee or Holders to Holders of
Senior Debt......................................................20
11.9 Trustee's Rights to Compensation, Reimbursement of
Expenses and Indemnification.....................................20
11.10 Exception for Certain Distributions.................................20
ARTICLE XII
MISCELLANEOUS
12.1 Notices.............................................................21
12.2 Communication by Holders with Other Holders.........................22
12.3 Certificate and Opinion as to Conditions Precedent..................22
12.4 Statements Required in Certificate or Opinion.......................22
12.5 Rules by Trustee....................................................22
12.6 No Recourse Against Others..........................................22
12.7 Variable Provisions.................................................22
12.8 Governing Law.......................................................23
12.9 Severability........................................................23
12.10 Effect of Headings, Table of Contents, etc..........................23
12.11 Counterparts; Facsimile.............................................23
12.12 Successors and Assigns..............................................23
12.13 No Interpretation of Other Agreements...............................23
EXHIBIT A Form of Note
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THIS INDENTURE is dated as of January 25, 2005, between Xxxxxxxxx
Mobile Fueling, Inc., a Florida corporation (the "Company"), and American
National Bank, a Colorado corporation (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 10% Senior Secured
Notes due January 24, 2010, in substantially the form attached as Exhibit A
hereto (the "Notes"):
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
1.1 Definitions.
"2003 Notes" means the Company's 10% Senior Secured Promissory Notes
due August 28, 2008.
"Affiliate" means any Person controlling, controlled by, or under
common control with the referenced Person. "Control" for this definition means
the power to direct the management and policies of a Person, directly or
indirectly, whether through the ownership of voting securities, by contract, or
otherwise. The terms "controlling" and "controlled" have meanings correlative to
the definition of "control."
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar federal
or state law for the relief of debtors.
"Business Day" means a day that is not a Legal Holiday.
"Common Stock" means the common stock of the Company, par value $.01
per share.
"Collateral" shall have the meaning given to that term in the Security
Agreement.
"Company" means Xxxxxxxxx Mobile Fueling, Inc., a Florida corporation.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Debt" means, with respect to any Person, (a) any obligation of such
Person to pay the principal of, premium of, if any, interest on (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not a claim for such
post-petition interest is allowed in such proceeding), penalties, reimbursement
or indemnification amounts, fees, expenses or other amounts relating to any
indebtedness, and any other liability, contingent or otherwise, of such Person
(i) for borrowed money (including instances where the recourse of the lender is
to the whole of the assets of such Person or to a portion thereof), (ii)
evidenced by a note, debenture or similar instrument (including a purchase money
obligation) including securities, (iii) for any letter of credit or performance
bond in favor of such Person, or (iv) for the payment of money relating to a
capitalized lease obligation; (b) any liability of others of the kind described
in the preceding clause (a), which the Person has guaranteed or which is
otherwise its legal liability; (c) any obligation of the type described in
clauses (a) and (b) secured by a lien to which the property or assets of such
Person are subject, whether or not the obligations secured thereby shall have
been assumed by or shall otherwise be such Person's legal liability; and (d) any
and all deferrals, renewals, extensions and refunding of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (a), (b) or (c).
"Default" means any event that is, or after notice or passage of time
would be, an Event of Default.
"Distribution" in any Proceeding means any payment or distribution of
assets or securities of the Company of any kind or character from any source,
whether in cash, securities or other property made by the Company, custodian,
liquidating trustee or agent or any other person whether pursuant to a plan or
otherwise.
"Event of Default" shall be as defined in the Note.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means a Person in whose name a Note is registered.
"Indenture" means this Indenture as amended from time to time.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open. If a payment date is a Legal Holiday
at a place of payment, payment may be made at that place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
"Notes" means the 10% Senior Secured Promissory Notes due January 24,
2010 held by a Holder, in substantially the form attached as Exhibit A hereto.
"Officer" means the President, any Vice President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Proceeding" means a liquidation, dissolution, bankruptcy, insolvency,
reorganization, receivership, or similar proceeding under Bankruptcy Law, an
assignment for the benefit of creditors, any marshalling of assets or
liabilities, or winding up or dissolution, but does not include any transaction
permitted by, and made in compliance with, Article 5.
"SEC" means the United States Securities and Exchange Commission.
"Securities Purchase Agreement" means the Securities Purchase Agreement
by and between the Company and the Purchasers (as defined therein), dated the
date hereof.
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"Security Agreement" means the Security Agreement dated of even date
herewith between the Company and Trustee.
"Senior Debt" means debt of the Company whenever incurred, outstanding
at any time, which expressly states by its terms that it is senior in right of
payment to the Notes, including, but not limited to, the debt evidenced under
the Wachovia Agreements; provided, however, that Debt held by the Company or any
Affiliate of the Company is not deemed to be Senior Debt; provided, further,
that the obligations under the 2003 Notes and the related indenture are not
deemed to be Senior Debt for any purpose hereunder.
"Senior Debt Default Notice" means any notice of a default (other than
a Senior Debt Payment Default) that permits the holders of any Senior Debt to
declare such Senior Debt due and payable.
"Senior Debt Payment Default" means a default in the payment of any
principal of or interest on any Senior Debt.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended from time to time.
"Trustee" means American National Bank, a Colorado corporation.
"U.S. Government Obligations" means securities that are direct,
noncallable, nonredeemable obligations of, or noncallable, nonredeemable
obligations guaranteed by, the United States for the timely payment of which
obligation or guarantee the full faith and credit of the United States is
pledged, or funds consisting solely of those securities, including funds managed
by Trustee or one of its Affiliates (including funds for which it or its
Affiliates receives fees in connection with such management).
"Wachovia" means Wachovia Bank, National Association, successor by
merger to Congress Financial Corporation (Florida).
"Wachovia Agreements" means, collectively, the Loan and Security
Agreement by and between the Company and Wachovia dated September 26, 2002 and
the loan documents referenced therein, together with all amendments thereto.
1.2 Other Definitions.
Term Defined in Section
"EBITDA".........................................................5.1
"Notice"........................................................11.1
"Paying Agent"...................................................2.3
"Registrar"......................................................2.3
"Total Debt".....................................................5.1
"Total Debt Ratio"...............................................5.1
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1.3 Rules of Construction. Unless the context otherwise requires:
(a) a term defined in Section 1.1 or Section 1.2 has the meaning
assigned to it in those Sections;
(b) an accounting term not otherwise defined has the meaning
assigned to that term in accordance with generally accepted accounting
principles in the United States;
(c) the word "or" is not exclusive;
(d) a word in the singular includes the plural, and a word in the
plural includes the singular;
(e) provisions apply to successive events and transactions; and
(f) the word "including" means including without limitation.
ARTICLE II
THE SECURITIES
2.1 Form and Dating. The Notes will be substantially in the form
attached hereto as Exhibit A, the terms of which are incorporated by reference
in, and expressly made a part of, this Indenture. The Notes may have notations,
legends, or endorsements required by law, national stock exchange rule,
automated quotation system, an agreement to which the Company is subject, or
usage. Each Note will be dated the date of its issuance.
2.2 Agents.
(a) The Company will maintain an office or agency where Notes may
be presented for registration of transfer or for exchange (the "Registrar") and
where Notes may be presented for payment (the "Paying Agent"). The Registrar
will keep a register of the Notes and of their transfer and exchange.
(b) The Company may appoint more than one Registrar or Paying
Agent. The Company will notify Trustee of the name and address of any Registrar
or Paying Agent not a party to this Indenture. If the Company does not appoint
another Registrar or Paying Agent, the Company will act in that capacity.
2.3 Paying Agent and Trustee to Hold Money in Trust. On or prior to
the due date for each payment of the principal and/or interest on any Note, the
Company will deposit with the Paying Agent, or the Company or its Affiliate will
segregate and hold in a separate trust fund, a sum sufficient to pay such
payment. If the Company is not the Paying Agent, then the Company will require
each Paying Agent, other than Trustee, to agree in writing that such Paying
Agent will hold such sums in trust for the benefit of Holders. If Trustee
receives any proceeds from the Collateral, which payment is not required by the
Security Agreement to be applied to the purchase of replacement Collateral, then
Trustee shall hold such amounts in trust until Trustee delivers such amounts to
the Paying Agent on or prior to the due date for the next payment of the
principal and/or interest on any Note, and such amounts shall be used to fund,
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in whole or in part, such payment, reducing the amount required to be paid by
the Company to fund such payment. If Trustee receives any funds representing the
proceeds of casualty or similar insurance on the Collateral , Trustee shall, in
collaboration with the Company, cause such funds to be applied to the purchase
of replacement Collateral, or repairs to existing Collateral, as the Company
shall, in its discretion, elect. If and to the extent that the Company elects
not to apply any such insurance proceeds to the purchase of replacement
Collateral or the repair of existing Collateral, then the Trustee shall hold
such amounts in trust until Trustee delivers such amounts to the Paying Agent on
or prior to the due date for the next payment of the principal and/or interest
on any Note, and such amounts shall be used to fund, in whole or in part, such
payment reducing the amount required to be paid by the Company to fund such
payment. The Paying Agent will notify the Holders and Trustee of any Default by
the Company in making any deposit required under this Section 2.3. During the
continuation of any such Default, the Company may require the Paying Agent to
transfer all sums held by the Paying Agent to Trustee and to account for any
funds disbursed by the Paying Agent. Upon complying with this Section 2.3, the
Paying Agent shall have no further liability for such amounts delivered to
Trustee. If the Company or any Affiliate of the Company acts as the Paying
Agent, the Company or that Affiliate will segregate the sums held in its
capacity as the Paying Agent in a separate trust fund.
2.4 Holder Lists. The Registrar maintain a list of the currently
available names and addresses of Holders. The Company will furnish to Trustee,
in writing at least ten (10) Business Days before each interest payment date and
at such other times as Trustee may request, a list in such form and as of such
date as Trustee may reasonably require of the names and addresses of Holders.
2.5 Transfer and Exchange.
(a) Each Note will be issued in unregistered form and will be
transferable only upon surrender of such Note for registration of transfer and
pursuant to the transfer restrictions noted in the Note. When a Note is
presented to the Registrar with a request to register a transfer or to exchange
it for an equal principal amount of Notes of other denominations in accordance
with the provisions of the Note, the Registrar will register the transfer or
make the exchange if the requirements for such transactions are met and the Note
has not been redeemed. The Company may charge a reasonable fee for any
registration of transfer or exchange.
(b) All notes issued upon any transfer or exchange in accordance
with the terms of this Indenture and the Notes will evidence the same debt and
be subject to the same terms and conditions as the Notes surrendered upon such
transfer or exchange.
2.6 Outstanding Notes.
(a) The Notes "outstanding" as of any time are all of the Notes
that have not been cancelled by Trustee or delivered to Trustee for cancellation
pursuant to Section 2.8. A Note does not cease to be outstanding because the
Company or an Affiliate holds the Note.
(b) A Note considered paid under Section 4.1 ceases to be
outstanding and interest on that Note ceases to accrue.
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2.7 Treasury Notes Disregarded for Certain Purposes. In determining
whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver, or consent, any Notes owned by the Company or an
Affiliate will be disregarded and deemed not to be outstanding, except that, for
the purposes of determining whether Trustee will be protected in relying on any
such direction, waiver, or consent, only Notes which Trustee knows are owned by
the Company or an Affiliate will be disregarded. Notes owned by the Company or
Affiliate that have been pledged in good faith will not be disregarded if the
pledgee establishes to the satisfaction of Trustee the pledgee's right to
deliver any direction, waiver, or consent with respect to the Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of that other obligor.
2.8 Cancellation. The Company at any time may deliver Notes to
Trustee for cancellation. The Paying Agent will forward to Trustee any Notes
surrendered to the Paying Agent for payment. The Trustee will cancel all Notes
surrendered for registration of transfer, exchange, payment or cancellation and
will dispose of canceled Notes according to Trustee's standard procedures or as
the Company otherwise directs. The Company will not issue new Notes to replace
Notes that (a) the Company has paid or (b) have been delivered to Trustee for
cancellation.
ARTICLE III
REDEMPTION
3.1 Notice to Trustee.
(a) If the Company elects to redeem a Note pursuant to any
optional redemption provisions of such Note, the Company will notify Trustee of
the redemption in accordance with the terms and conditions set forth in the
Note.
(b) The Company shall give the notice provided for in this
Section 3.1 at least forty-five (45) days (unless both Wachovia and Trustee
agree in writing to a shorter period) but not more than sixty (60) days before a
redemption date, which notice shall specify the redemption date, the amount of
principal due on the Note to be redeemed and the provisions of the Note pursuant
to which the Company elects to redeem such Securities.
3.2 Selection of Notes to be Redeemed. If less than all the Notes are
to be redeemed, Trustee will select the Notes to be redeemed in a manner it
deems fair and appropriate, which may include selection pro rata or by lot.
Trustee will make such selection from all outstanding Notes that have not been
previously called for redemption. Provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.
3.3 Notice of Redemption. The Company will send a notice of
redemption to each Holder whose Note is to be redeemed in accordance with the
terms and conditions set forth in the Note.
3.4 Deposit of Redemption Price. On or before the redemption date,
the Company will deposit with the Paying Agent (or, if the Company or any
Affiliate is the Paying Agent, will segregate and hold in trust) the amounts
sufficient to pay the redemption price of the Notes being redeemed together with
all accrued interest thereon.
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3.5 Notes Redeemed in Part. Upon surrender of a Note that is redeemed
in part, the Company will deliver to the Holder, at the Company's expense, a new
Note equal in principal amount to the unredeemed portion of the redeemed Note.
ARTICLE IV
COVENANTS
4.1 Payment of Notes.
(a) The Company will pay the principal of, and interest on, the
Notes on the dates and in the manner provided in the Notes and this Indenture.
Principal and interest will be considered paid on the date due if the requisite
amounts (i) are paid to the Holders prior to or on such due date if the Paying
Agent is the Company or its Affiliate, or (ii) are deposited with the Paying
Agent prior to or on such due date if the Paying Agent is not the Company or its
Affiliate.
(b) The Company will pay interest on overdue principal and unpaid
interest in accordance with the terms of, and at the rate prescribed in, the
Notes.
4.2 SEC Reports. From the date hereof until such time as all Notes
have been paid in full, the Company will provide Trustee with copies of the
annual reports and of the information, documents and other reports which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. In the event the Company is no longer a reporting company with the
SEC, the Company will provide Trustee with copies of the information and
financial statements that would be required to be included in Forms 10-K and
10-Q at such times that any such form would be required to be filed with the SEC
if the Company were a reporting company. The Company will also make available
copies of any quarterly and annual reports that the Company makes available to
its stockholders. Delivery of such reports, information, documents, and other
reports to Trustee is for informational purposes only and Trustee's receipt of
such reports will not constitute notice or constructive notice of any
information contained in such reports or determinable from information contained
in such reports, including the Company's compliance with any of covenants
contained in this Indenture.
4.3 Compliance Certificate. The Company will deliver to Trustee,
within one hundred and five (105) days after the end of each fiscal year of the
Company, a certificate signed by the chief executive officer, chief financial
officer or principal accounting officer of the Company, as to such officer's
knowledge of the Company's compliance with all conditions and covenants
contained in this Indenture and the Note (determined without regard to any
period of grace or requirement of notice provided in this Indenture).
4.4 Notice of Certain Events. The Company shall give prompt written
notice to Trustee, each Holder and any Paying Agent of (a) any Proceeding, (b)
any Default or Event of Default, (c) any cure or waiver of any Default or Event
of Default, (d) any Senior Debt Payment Default or Senior Debt Default Notice,
and (e) the listing of any of the Notes on any national stock exchange.
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ARTICLE V
SUCCESSORS
5.1 When Company May Merge, etc.
(a) Without the consent in writing of the Holders of at least
sixty-six and 2/3 percent (662/3%) of the principal amount of outstanding Notes,
the Company will not consolidate or merge with or into, or transfer all or
substantially all of its assets to, or acquire all or substantially all of the
assets of, any Person, unless:
(i) either:
(A) the Company will be the resulting or surviving
entity; or
(B) that Person (1) is a corporation organized and
existing under the laws of the United States, a State of the United
States or the District of Columbia and (2) assumes by supplemental
indenture all the obligations of the Company under the Notes and this
Indenture;
(ii) the ratio of Total Debt divided by EBITDA (the "Total
Debt Ratio") is equal to or less than 4.0;
(iii) immediately before and immediately after the
transaction no Default exists;
(iv) Xxxxxxx X. Xxxxxxxxx remains as Chief Executive Officer
of the Company; and
(v) prior to the proposed transaction, the Company delivers
to Trustee an Officer's Certificate and an Opinion of Counsel, each of
which will state that such consolidation, merger, or transfer and the
supplemental indenture comply with this Article 5 and that the Company
has complied with all conditions precedent in this Indenture and
relating to this transaction.
(b) As used in this Section 5.1, "Total Debt" means all Debt of
the Company, including all subordinated debt but excluding the Senior Debt,
accounts payable and accrued liabilities incurred in the ordinary course of
business.
(c) As used in this Section 5.1, "EBITDA" means earnings before
interest, taxes, depreciation and amortization calculated on an annualized basis
based on the twelve (12) months preceding the month in which such transaction
occurs.
5.2 Successor Corporation Substituted. Upon any consolidation,
merger, or any transfer of all or substantially all of the assets of the Company
in accordance with Section 5.1, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made, will succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture and the Notes with the same effect as
if that successor had been named as the Company in this Indenture and in the
Notes. In the event of any such transfer, the predecessor Company shall be
released and discharged from all liabilities and obligations in respect of the
Notes and the Indenture, and the predecessor Company may be dissolved, wound up
or liquidated at any time thereafter.
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ARTICLE VI
DEFAULTS AND REMEDIES
6.1 Acceleration. Upon the occurrence and during the continuation of
an Event of Default, all outstanding principal and accrued and unpaid interest
on the Notes will be immediately due and payable.
6.2 Notice of Defaults. If a continuing Default is known to Trustee,
Trustee will mail to the Holders a notice of the Default no later than thirty
(30) days after it receives knowledge of such Default. Except in the case of a
Default in the payment of any amounts of principal or interest due on any Note,
Trustee may withhold the notice if and so long as Trustee in good faith
determines that withholding the notice is in the interests of the Holders.
Trustee shall mail to Holders any notice it receives from the Holder(s) under
Section 6.5, and of any notice Trustee provides pursuant to Section 6.5(c)(i).
6.3 Other Remedies.
(a) If an Event of Default occurs and is continuing, Trustee may
pursue any available remedy to collect the payment of principal or interest on
the Notes or to enforce the performance of any provision of the Notes, this
Indenture or the Security Agreement.
(b) The Trustee may maintain a proceeding under Section 6.2(a)
even if the Trustee does not possess any of the Notes or does not produce any of
them in the Proceeding. A delay or omission by Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default will not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of
Default. All remedies are cumulative to the extent permitted by law.
6.4 Control by Two-Thirds Majority. The Holders of at least sixty-six
and 2/3 percent (662/3%) of the principal amount of outstanding Notes may direct
the time, method, and place of conducting any Proceeding for any remedy
available to Trustee or exercising any trust or power conferred on Trustee. The
Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture, is unduly prejudicial to the rights of other Holders, or would
involve Trustee in personal liability or expense for which Trustee has not
received an indemnity reasonably satisfactory to Trustee.
6.5 Limitation on Suits.
(a) A Holder may pursue a remedy with respect to this Indenture
or the Holder's Note only if:
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(i) Trustee has notice of an Event of Default;
(ii) Holders of at least twenty-five percent (25%) in
principal amount of the Notes make a written request to Trustee to
pursue the remedy;
(iii) Trustee either (A) gives to such Holders notice that
Trustee will not comply with such request, or (B) does not comply with
such request within fifteen (15) days after receipt of the request from
such Holders; and
(iv) Holders of more than sixty-six and 2/3 percent (662/3%)
of the principal amount of the Notes do not give Trustee written notice
inconsistent with the request delivered under Section 6.5(a)(ii) prior
to the earlier of (A) the date on which Trustee delivers a notice under
Section 6.5(a)(iii)(A) or (B) the expiration of the period described in
Section 6.5(a)(iii)(B).
(b) A Holder may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over another Holder.
6.6 Rights of Holders To Receive Payment.
(a) Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal and interest on
the Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, will not be impaired or affected without the consent of the Holder.
(b) Nothing in this Indenture limits or defers the right or
ability of any Holder to petition for commencement of a case pertaining to the
Company under applicable Bankruptcy Law.
6.7 Priorities.
(a) After an Event of Default, any money or other property
distributable in respect of the Company's obligations under this Indenture will
be paid in the following order:
(i) first, to Trustee (including any predecessor Trustee)
for amounts due under Section 8.6;
(ii) second, to holders of Senior Debt to the extent
required by Article 11;
(iii) third, to Holders for amounts due and unpaid on the
Notes for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes for principal and interest, respectively; and
(iv) fourth, to the Company.
(b) The Trustee may fix a record date and payment date for any
payment to Holders.
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6.8 Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or the Notes or in any suit against Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section will not apply to a suit by Trustee, a
suit by a Holder pursuant to Section 6.6, or a suit by Holders of more than ten
percent (10%) in principal amount of the Notes.
6.9 Proof of Claim. In the event of any Proceeding, Trustee may file
a claim for the unpaid balance of the Notes in the form required in the
Proceeding and cause the claim to be approved or allowed. Nothing contained in
this Indenture will be deemed to authorize Trustee to authorize or consent to,
or accept or adopt on behalf of, any Holder any plan of reorganization,
arrangement, adjustment, or composition affecting the Notes or the rights of any
Holder, or to authorize Trustee to vote in respect of the claim of any Holder in
any Proceeding.
6.10 Actions of a Holder. For the purpose of providing any consent,
waiver or instruction to the Company or Trustee, a "Holder" shall include a
Person who provides to the Company or Trustee, as the case may be, an affidavit
of beneficial ownership of a Note together with a satisfactory indemnity against
any loss, liability, or expense to that party, to the extent that such party
acts upon such affidavit of beneficial ownership, including any consent, waiver
or instructions given by a Person providing such affidavit and indemnity.
ARTICLE VII
OTHER DISTRIBUTIONS
7.1 Priorities.
(a) Upon a full or partial sale of Collateral pursuant to the
terms of the Security Agreement, Trustee will hold the proceeds thereof in a
separate account for the benefit of Holders in kind, and any money or other
property distributable in respect of the Company's obligations under this
Indenture will be paid in the following order:
(i) first, to Trustee (including any predecessor Trustee)
for amounts due under Section 8.6;
(ii) second, to holders of Senior Debt to the extent
required by Article 11;
(iii) third, to Holders for amounts due and unpaid on the
Notes for Principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes for Principal and interest, respectively; and
(iv) fourth, to the Company.
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(b) Any money or other property distributable arising out of
foreclosure proceedings brought against the Company and distributable in respect
of the Company's obligations under this Indenture will be paid in the order
noted in Section 7.1(a) above.
(c) The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Article 7.
ARTICLE VIII
TRUSTEE
8.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
Trustee will exercise those rights and powers vested in it by the Indenture, the
Notes and the Security Agreement, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of its own affairs, including the exercise of the
remedies set forth in this Indenture and the Note.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture, the Notes and the Security
Agreement.
(ii) In the absence of bad faith on its part, Trustee may
conclusively rely upon certificates or opinions furnished to Trustee
and conforming to the requirements of this Indenture, as to the truth
of the statements and the correctness of the opinions expressed in
those certificates and opinions. However, Trustee will examine the
certificates and opinions to determine whether or not the certificates
and opinions conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of Section
8.1(b).
(ii) Trustee will not be liable for any error of judgment
made in good faith by a Trustee or by any agent, employee or affiliate
of Trustee, unless a court of competent jurisdiction finds that Trustee
was negligent in ascertaining the pertinent facts.
(iii) Trustee will not be liable with respect to any action
Trustee takes or omits to take in good faith in accordance with a
direction received by Trustee pursuant to Section 2.3 or Section 6.4.
(iv) Trustee may refuse to perform any duty or exercise any
right or power which would require Trustee to expend its own funds or
risk any liability if Trustee reasonably believes that repayment of
such funds or adequate indemnity against that risk is not reasonably
assured to Trustee.
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(d) Every provision of this Indenture that in any way relates to
Trustee is subject to Section 8.1(a), (b) and (c).
(e) The Trustee will not be liable for interest on any money
received by Trustee, except as Trustee may agree with the Company. The Trustee
is not required to segregate money in trust from other funds, except to the
extent required by this Indenture or as may be otherwise required by law.
8.2 Rights of Trustee.
(a) Except as set forth in Section 8.1(b), the Trustee may rely
on any document believed by Trustee to be genuine and to have been signed or
presented by the proper Person. The Trustee is not required to investigate any
fact or matter stated in the document.
(b) Before Trustee acts or refrains from acting, Trustee may
require a certificate from an Officer of the Company or an opinion of counsel.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion. The Trustee may also consult
with counsel on any matter relating to this Indenture or the Notes. The Trustee
shall not be liable for any action Trustee takes or omits to take in good faith
in reliance on the advice of counsel.
(c) The Trustee may act through agents and will not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action Trustee takes
or omits to take in good faith which Trustee believes to be authorized or within
Trustee's rights or powers.
(e) Trustee will only be charged with knowledge of agents,
officers, employees or other affiliates of Trustee.
8.3 Individual Rights of Trustee; Disqualification. Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or an Affiliate with the same rights Trustee
would have if it were not Trustee.
8.4 Trustee's Disclaimer. Trustee will have no responsibility for the
validity or adequacy of this Indenture, the Security Agreement or the Notes. The
Trustee will not be accountable for the Company's use of the proceeds from the
Notes. The Trustee will not be responsible for the accuracy or completeness of
any statement of fact in the Security Agreement or the Notes.
8.5 Compensation and Indemnity.
(a) The Company will pay to Trustee from time to time reasonable
compensation for Trustee's services. The Trustee's compensation will not be
limited by any law on compensation of a trustee of an express trust. The Company
will reimburse Trustee upon request for all reasonable out-of-pocket expenses
incurred by Trustee. Those expenses will include the reasonable compensation and
out-of-pocket expenses of Trustee's agents and counsel.
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(b) The Company will indemnify Trustee against any loss,
liability or expense incurred by Trustee. The Trustee will notify the Company
promptly of any claim for which Trustee may seek indemnity. The Company shall
defend the claim and Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company will pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without the
Company's consent, which consent shall not unreasonably be withheld.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by Trustee through gross negligence,
willful misconduct, or bad faith.
(d) To secure the Company's payment obligations in this Section
8.5, Trustee will have a lien prior to the Notes on all money or property held
or collected by Trustee, except any money held in trust to pay principal and
interest on any Note(s).
(e) Without prejudice to its rights under this Indenture, when
Trustee incurs expenses or renders services after an Event of Default relating
to the following, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law when:
(i) the Company pursuant to, or within the meaning of, any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against the Company in an involuntary case;
(C) consents to the appointment of a Custodian of the
Company or for all or substantially all of the Company's property; or
(D) makes a general assignment for the benefit of the
Company's creditors; or
(ii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of the Company's property, or
(C) orders the liquidation of the Company, and the
order or decree remains unstayed and in effect for sixty (60) days.
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8.6 Replacement of Trustee.
(a) A resignation or removal of Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 8.6.
(b) The Trustee may resign by notifying the Company. The Holders
of at least sixty-six and 2/3 percent (662/3%) of the principal amount of
outstanding Notes may remove Trustee by notifying Trustee and the Company. The
Company may remove Trustee if:
(i) Trustee fails to comply with Section 8.7;
(ii) Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or public officer takes charge of Trustee or
its property; or
(iv) Trustee becomes incapable of acting.
(c) If Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee.
(d) If a successor Trustee is not appointed and does not take
office within thirty (30) days after the retiring Trustee resigns or is removed,
the retiring Trustee may appoint a successor Trustee at any time prior to the
date on which a successor Trustee takes office. If a successor Trustee does not
take office within forty-five (45) days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or, subject to Section 6.8, any
Holder may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If Trustee fails to comply with Section 8.7, any Holder may
petition any court of competent jurisdiction for the removal of Trustee and the
appointment of a successor Trustee. Within one (1) year after a successor
Trustee appointed by the Company or a court pursuant to this Section 8.6 takes
office, the Holders of at least sixty-six and 2/3 percent (662/3%) of the
principal amount of outstanding Notes may appoint a successor Trustee to replace
such successor Trustee.
(f) A successor Trustee will deliver a written acceptance of the
appointment to the retiring Trustee and to the Company. Upon receipt of the
acceptance by the Company, the resignation or removal of the retiring Trustee
will become effective, and the successor Trustee will have all the rights,
powers, and duties of Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to the Holders. The retiring Trustee will
promptly transfer all property held by that retiring Trustee as Trustee to the
successor Trustee, subject to the lien provided for in Section 8.5.
8.7 Successor Trustee by Merger, etc. If Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act will be the successor Trustee.
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ARTICLE IX
SATISFACTION AND DISCHARGE
9.1 Satisfaction and Discharge of Indenture.
(a) This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Notes expressly provided for herein), and Trustee, on demand of and at expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(i) Either
(A) all Notes theretofore delivered (other than Notes
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 9.4)
have been delivered to Trustee for cancellation; or
(B) all such Notes not theretofore delivered to Trustee
for cancellation (i) have become due and payable, (ii) will become due
and payable at their stated maturity within one (1) year, or (iii) are
to be called for redemption within one (1) year under arrangements
satisfactory to Trustee for the giving of notice of redemption by
Trustee in the name, and at the expense, of the Company, and the
Company has deposited or caused to be deposited with Trustee in trust
an amount of money or U.S. Government Obligations sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore
delivered to Trustee for cancellation, for principal and interest to
the date of such deposit (in the case of Notes which have become due
and payable) or to the stated maturity or redemption date, as the case
may be;
(ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(iii) the Company has delivered to Trustee a certificate of
an Officer of the Company and a legal opinion from Company counsel,
each stating that all conditions precedent herein relating to the
satisfaction and discharge of this Indenture have been complied with.
(b) Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Holders under Section 4.1, to
Trustee under Section 8.5, and, if money or U.S. Government Obligations shall
have been deposited with Trustee pursuant to Section 9.1(a)(i)(B) of this
Section, the obligations of Trustee under Section 9.2 shall survive.
9.2 Application of Trust Funds. The Trustee or Paying Agent shall
hold in trust, for the benefit of the Holders, all money and U.S. Government
Obligations deposited with it (or into which such money and U.S. Government
Obligations are reinvested) pursuant to Section 9.1. It shall apply such
deposited money and money from U.S. Government Obligations in accordance with
this Indenture to the payment of the principal and interest on the Notes. Money
and U.S. Government Obligations so held in trust (a) are not subject to Article
11 and (b) are subject to Trustee's rights under Section 8.5.
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9.3 Reinstatement. If Trustee or Paying Agent is unable to apply any
money or U.S. Obligations in accordance with Section 9.1 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes will be revived and restated as though no deposit
had occurred pursuant to this Article 9, until such time as Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 9.1; provided, however, that if the Company makes any
payment of principal of, or interest on, any Note following the reinstatement of
its obligations, the Company will be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by Trustee or Paying Agent after payment in full to the Holders.
9.4 Repayment to Company.
(a) The Trustee and Paying Agent shall promptly turn over to the
Company upon request any excess money or U.S. Government Obligations held by
them at any time. All money or U.S. Government Obligations deposited with
Trustee pursuant to Section 9.1 (and held by it or a Paying Agent) for the
payment of Notes subsequently redeemed or cancelled will be returned to the
Company upon request.
(b) The Trustee and the Paying Agent shall pay to the Company
upon request any money held by them for payment of principal or interest that
remains unclaimed for two (2) years after the right to such money has matured.
After payment to the Company, Holders entitled to the money shall look to the
Company for payment as unsecured general creditors unless an abandoned property
law designates another Person.
ARTICLE X
AMENDMENTS
10.1 Without Consent of Holders. The Company and Trustee may amend
this Indenture or the Notes without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Section 4.1; or
(c) to make any change that does not adversely affect the rights
of any Holder.
10.2 With Consent of Holders.
(a) The Company and Trustee may amend this Indenture with the
written consent of the Holders of at least sixty-six and 2/3 percent (662/3%) of
the principal amount of outstanding Notes. However, without the consent of each
Holder affected, an amendment under this Section may not:
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(i) reduce the amount of Notes whose Holders must consent to
an amendment;
(ii) reduce the interest on or change the time for payment of
interest on any Note;
(iii) reduce the principal of or change the fixed maturity of
any Note;
(iv) reduce the premium payable upon the redemption of any
Note or change the time at which any Note may or will be redeemed;
(v) make any Note payable in money other than of the type
stated in the Note;
(vi) make any change to Section 6.5 or this Section 10.2; or
(vii) make any change to Article 11 that adversely affects
the rights of any Holder.
(b) The consent of the Holders under this Section will not be
necessary to approve the particular form of any proposed amendment, but will be
sufficient if that consent approves the substance of that amendment.
(c) An amendment under this Section 10.2 may not make any change
that adversely affects the rights under Article 11 of any Senior Debt unless the
holder(s) of such Senior Debt consent(s) to the change.
10.3 Compliance with Trust Indenture Act and Section 12.3. Every
amendment to this Indenture or the Notes shall comply with the TIA as then in
effect, so long as the Indenture and Notes are subject to the TIA. The Trustee
is entitled to, and the Company will provide, an opinion of counsel and a
certificate of an Officer of the Company pursuant to Section 12.3 that Trustee's
execution of any amendment or supplemental indenture is permitted under this
Article 10.
10.4 Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Note
will bind the Holder and every subsequent Holder of that Note or portion of the
Note that evidences the same debt as the consenting Holder's Note, even if a
notation of the consent or waiver is not made on the Note.
(b) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to give their consent
or take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, will be
entitled to give such consent or to revoke any consent previously given or take
any such action, whether or not such Persons continue to be Holders after such
record date. No consent will be valid or effective for more than one hundred
twenty (120) days after the record date.
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10.5 Notice of Amendment; Notation on or Exchange of Notes.
(a) After any amendment under this Article 10 becomes effective,
the Company will mail to the Holders a notice briefly describing that amendment.
The failure to give notice to all Holders, or any defect in that notice, will
not impair or affect the validity of an amendment under this Article 10.
(b) The Company or Trustee may place an appropriate notation
about an amendment or waiver on any Note issued after the date of that amendment
or waiver. The Company may issue in exchange for affected Notes new Notes that
reflect the amendment or waiver.
10.6 Trustee Protected. The Trustee need not sign any supplemental
indenture that adversely affects that Trustee's rights.
ARTICLE XI
SUBORDINATION
11.1 Notes Subordinated to Senior Debt. Except for the rights of
Holders to the Collateral described in the Security Agreement, which is a first
priority security interest in such Collateral, the rights of Holders to payment
of the principal of and interest on the Notes is subordinated to the rights of
holders of Senior Debt, to the extent and in the manner provided in this Article
11 and the Notes.
11.2 Notes Subordinated in Any Proceeding. In the event that any
Distribution in any Proceeding is received by Trustee before all Senior Debt is
paid in full, such Distribution will be applied by Trustee in accordance with
this Article 11. As used in this Article 11, "Trustee" includes any Paying
Agent.
11.3 No Payment on Notes in Certain Circumstances.
(a) The Company shall not, directly or indirectly (other than in
capital stock of the Company) pay any principal of or interest on, redeem,
defease or repurchase the Notes except as provided in the Notes.
(b) If any Distribution, payment or deposit to redeem, defease or
acquire any of the Notes shall have been received by Trustee at a time when such
Distribution was prohibited by the provisions of Section 11.3(a), then, unless
such Distribution is no longer prohibited by Section 11.3(a), such Distribution
will be received and applied by Trustee for the benefit of the holders of Senior
Debt, and will be paid or delivered by Trustee to the holders of Senior Debt for
application to the payment of all Senior Debt, pursuant to the terms of the
Notes and (i) the Wachovia Agreements, in the case of Wachovia, and (ii) the
applicable Senior Debt agreement(s), in the case of other holders of Senior
Debt.
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11.4 Obligations of the Company Unconditional. Nothing in this
Indenture is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Notes as and when the
same will become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders and creditors of the
Company, other than the holders of Senior Debt. If the Company fails because of
this Article 11 to pay principal of or interest on a Note on the due date, the
failure is still a Default. Upon any Distribution, Trustee and the Holders will
be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which the Proceeding is pending, or a certificate of the
liquidating trustee or agent or other Person making any Distribution for the
purpose of ascertaining the Persons entitled to participate in such
Distribution, the holders of Senior Debt and other Debt of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 11.
11.5 Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice. The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
Trustee, unless and until Trustee shall have received, no later than three (3)
Business Day(s) prior to such payment, written notice thereof from the Company
or from one or more holders of Senior Debt (or shall have expressly declared in
writing actual knowledge of such fact) and, prior to the receipt of any such
written notice (or the existence of such declaration), Trustee will be entitled
in all respects conclusively to presume that no such fact exists. Unless Trustee
shall have received the notice provided for in the preceding sentence or shall
have expressly declared in writing actual knowledge of such fact, Trustee shall
have full power and authority to receive such payment and to apply the same to
the purpose for which it was received, and shall not be affected by any notice
to the contrary which may be received by it on or after such date. The foregoing
shall not apply to the Company or any of its Affiliates acting as Paying Agent.
11.6 Satisfaction and Discharge. Amounts deposited in trust with
Trustee pursuant to and in accordance with Article 9 and not prohibited to be
deposited under Section 11.3(a) when deposited shall not be subject to this
Article 11.
11.7 Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt. No right of any holder of any Senior Debt
established in this Article 11 shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any failure by the
Company to comply with the terms of this Indenture.
11.8 No Fiduciary Duty of Trustee or Holders to Holders of Senior
Debt. Neither Trustee nor the Holders owes any fiduciary duty to the holders of
Senior Debt. Neither Trustee nor the Holders will be liable to any holder of
Senior Debt in the event that Trustee, acting in good faith, shall pay over or
distribute to the Holders, the Company, or any other Person, any property to
which any holders of Senior Debt are entitled by virtue of this Article 11 or
otherwise. Nothing contained in this Section 11.8 shall affect the obligation of
any other such Person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Debt.
11.9 Trustee's Rights to Compensation, Reimbursement of Expenses and
Indemnification. The Trustee's rights to compensation, reimbursement of expenses
and indemnification under Sections 6.6 and 8.5 are not subordinated.
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11.10 Exception for Certain Distributions. The rights of holders of
Senior Debt under this Article 11 do not extend (a) to any Distribution to the
extent applied to Trustee's rights to compensation, reimbursement of expenses or
indemnification or (b) to Distributions under any plan approved by the court in
any Proceeding.
ARTICLE XII
MISCELLANEOUS
12.1 Notices.
(a) Any notice or communication is duly given if in writing and
delivered in person or sent by first-class mail (registered or certified, return
receipt requested), facsimile or overnight air courier guaranteeing next-day
delivery, addressed as follows:
If to the Company:
Xxxxxxxxx Mobile Fueling, Inc.
000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Ph: 000-000-0000
Fax: 000-000-0000
If to the Trustee:
American National Bank
0000 Xxxx 0xx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Ph: 000-000-0000
Fax: 000-000-0000
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(b) All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five (5) business days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if faxed; and the
next business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery.
(c) Any notice or communication to a Holder shall be mailed by
first-class mail to such Holder's address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If the
Company mails a notice or communication to Holders, it shall mail a copy to the
Trustee at the same time.
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(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
12.2 Communication by Holders with Other Holders. Holders may
communicate with other Holders with respect to their rights under this
Indenture, the Note or the Securities Purchase Agreement.
12.3 Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to Trustee to take any action under this
Indenture, the Company shall furnish to Trustee:
(a) a certificate of an Officer of the Company stating that, to
the knowledge of such Officer, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with; and
(b) an opinion of counsel to the Company stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.
12.4 Statements Required in Certificate or Opinion. Each certificate
or opinion with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(a) a statement that each Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, the Person
has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
12.5 Rules by Trustee. The Trustee may make reasonable rules for
action by or a meeting of Holders.
12.6 No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation.
12.7 Variable Provisions.
(a) The Company will initially act as Paying Agent.
(b) The first certificate pursuant to Section 4.3 will be for the
fiscal year ending on June 30, 2005.
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(c) The depositary institution into which Trustee or Paying Agent
deposits any funds held under this Indenture shall always have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee and Paying Agent will be
deemed to be in compliance with the capital and surplus requirement set forth in
the preceding sentence if the obligations of such depositary institution are
guaranteed by a Person which could otherwise qualify as such depositary
institution hereunder.
12.8 Governing Law. The laws of the State of Florida shall govern this
Indenture, without regard to the conflicts of laws of that state.
12.9 Severability. In case any provision in this Indenture or in the
Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
12.10 Effect of Headings, Table of Contents, etc. The Article and
Section headings herein and the table of contents are for convenience only and
shall not affect the construction hereof.
12.11 Counterparts; Facsimile. This Indenture may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which taken together shall constitute one agreement. Signatures to this
Indenture may be transmitted by facsimile and such transmission shall be deemed
to be an original.
12.12 Successors and Assigns. All covenants and agreements of the
Company in this Indenture and the Notes shall bind its successors and assigns.
All agreements of the Trustee in this Indenture shall bind its successor.
12.13 No Interpretation of Other Agreements. This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or
any Subsidiary. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
executed by their respective duly authorized officers or persons as of the date
first set forth above.
COMPANY:
Xxxxxxxxx Mobile Fueling, Inc.
By: /s/Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxx, President and
Chief Executive Officer
TRUSTEE:
American National Bank
By: /s/Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title:
By:
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Name:
Title:
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