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Exhibit T3-C
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BISSELL INC.
SUBORDINATED NOTES
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INDENTURE
Dated as of March 15, 1998
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FIRST OF AMERICA BANK, N.A.
Trustee
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INDENTURE dated as of March 15, 1998 between BISSELL INC., a Michigan
corporation (the "Company") and First of America Bank, N.A., a national banking
corporation ("Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the [__]% Subordinated
Notes of the Company having a final maturity of June 30, 2008 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee thereof.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Company" has the meaning set forth in the preamble hereto.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof; provided, however, for the purpose
of presentation of Notes for payment, transfer or exchange and maintenance of
the registration books, such term shall mean the office at which the Trustee
conducts its corporate agency business, or such other address as to which the
Trustee may give notice to the Company.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Event of Default" has the meaning assigned to it in Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other
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entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under (i) currency exchange or interest rate swap agreements,
currency exchange or interest rate cap agreements and currency exchange or
interest rate collar agreements and (ii) other agreements or arrangements
designed to protect such Person against fluctuations in currency exchange or
interest rates.
"Holder" means a holder of any of the Notes.
"Indebtedness" means any indebtedness of the Company, whether or not
contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or banker's acceptances or representing Capital
Lease Obligations or the balance deferred and unpaid of the purchase price of
any property (other than contingent or "earnout" payment obligations) or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of the Company prepared in
accordance with GAAP, as well as all indebtedness of others secured by a Lien
on any asset of the Company (whether or not such indebtedness is assumed by the
Company) and, to the extent not otherwise included, the Guarantee by the
Company of any indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Interest Payment Date" means March 31, June 30, September 30 and December
31 in any applicable year
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of Grand Rapids, Michigan, Kalamazoo, Michigan, or at
a place of payment are authorized by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to the Company, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of the Company.
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"Officer's Certificate" means a certificate signed on behalf of the
Company by the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer or the
Treasurer of the Company, that meets the requirements set forth in Section
11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.05 hereof.
"Paying Agent" has the meaning assigned to it in Section 2.03 hereof.
"Permitted Junior Securities" means equity securities of the Company or
debt securities of the Company that are subordinated in right of payment to all
Senior Debt and all securities issued in exchange for Senior Debt that may at
the time be outstanding, to substantially the same extent as, or to a greater
extent than, the Notes.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Record Date" means, with respect to any Interest Payment Date, the 15th
day of the preceding calendar month.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt who shall have given notice in writing to
the Trustee that it serves in such capacity with respect to Senior Debt.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee assigned to
perform the duties of Trustee hereunder and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Registrar" has the meaning assigned to it in Section 2.03 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means all Indebtedness from time to time outstanding unless
the instrument under which such Indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment to the Notes.
Notwithstanding anything to the contrary in the foregoing, Senior Debt shall
not include (1) any liability for federal, state, local or other taxes owed or
owing by the Company, (2) any trade payables, (3) Indebtedness which, when
incurred and without respect to any election under Section 1111(b) of Xxxxx 00,
Xxxxxx Xxxxxx Code, is without recourse to the Company, and (4) Indebtedness
evidenced by the Notes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section Section
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means the party named as such in the preamble hereto until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
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SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified' means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; provisions apply to successive events and
transactions; and
(5) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections
or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A attached hereto. The Notes may have
notations, legends or endorsements required by law, applicable stock exchange
rule, if any, or usage. The Company and the Trustee shall approve the form of
the Notes and any notation, legend or endorsement on them. Each Note shall be
dated the date of its issuance and shall show the date of its authentication.
The Notes shall be issued only in registered form, without coupons, in
denominations which are in integral multiples of $[___]. The terms and
provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
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SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by one
Officer, authenticate Notes for original issue up to the aggregate principal
amount $[_________]. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.08 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ( "Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one additional
paying agent. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity
as Registrar or Paying Agent, the Trustee shall act as such. The Company may
act as Paying Agent or Registrar.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of and interest on the Notes, and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company) shall have no further liability for the money
delivered to the Trustee. If the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent
for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is
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not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange. When Notes are presented by a Holder to the
Registrar with a request:
(x) to register the transfer of the Notes; or
(y) to exchange such Notes for an equal principal amount of
Notes of authorized denominations, the Registrar shall register the
transfer or make the exchange as requested; provided, however, that
the Notes presented or surrendered for register of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such
Holder or by his or her attorney, duly authorized in writing; and
(ii) such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Note is being delivered to the Registrar by a
Holder for registration in the name of such Holder, without
transfer, or such Note is being transferred to the Company, a
certification to that effect from such Holder (in substantially the
form of Exhibit B hereto);
(B) if such Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certification to
that effect from such Holder (in substantially the form of Exhibit
B hereto); or
(C) if such Note is being transferred in reliance on any
exemption from the registration requirements of the Securities Act,
a certification to that effect from such Holder (in substantially
the form of Exhibit B hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the Company and
to the Registrar to the effect that such transfer is in compliance
with the Securities Act and all applicable state or foreign
securities laws.
(b) Legends.
(i) Each Note certificate evidencing a Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear legends in
substantially the following form:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
AND (A) MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (2) IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE,
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
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XXX XXXXXX XX XXX XXXXXX XXXXXX AND ANY FOREIGN JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE NOTES EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
(c) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges which are in
compliance with the provision of this Section 2.06, the Company shall
execute and the Trustee shall authenticate Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or similar governmental charge
payable in connection therewith (other than any such taxes or similar
governmental charge payable upon exchange or transfer).
(iii) All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
(iv) The Company shall not be required to register the transfer of
or to exchange a Note between a Record Date and the next succeeding
Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vi) The Trustee shall authenticate Notes in accordance with the
provisions of Section 2.02 hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon the written order of
the Company signed by an Officer of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that
is sufficient in the reasonable judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge such Holder for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
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SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding. Except as
set forth in Section 2.09 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07 hereof.
If any portion of the principal amount of any Note is considered paid
under Sections 3.05 or 4.01 hereof, such portion ceases to be outstanding and
interest on such portion ceases to accrue.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Trustee knows are so owned shall be so disregarded.
SECTION 2.10. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes (subject to any applicable record retention requirement of the
Exchange Act). Certification of the destruction of all canceled Notes shall be
delivered to the Company. The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST OR PRINCIPAL.
If the Company defaults in the payment of an installment of interest or
principal on the Notes, it shall pay the defaulted interest or principal in any
lawful manner to the Persons who are Holders on a subsequent special Record
Date. Subject to the requirement that the Company must pay all defaulted
interest on the Notes before paying any defaulted principal, the Company shall
notify the Trustee in writing of any default under clauses (i) or (ii) of
Section 6.01 and the amount of defaulted interest or principal proposed to be
paid on the Notes and the date of the proposed payment. The Company shall fix
or cause to be fixed each such special Record Date and payment date, provided
that no such special Record Date shall be less than 10 days prior to the
related payment date for such defaulted interest or principal. At least 15 days
before the special Record Date, the Company (or, upon the written request of
the Company, the Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders a notice that states the special Record
Date, the related payment date and the amount of such interest or principal, or
both, to be paid.
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SECTION 2.12. REQUIREMENT FOR SURRENDER OF NOTES UPON FINAL MATURITY OR
PREPAYMENT.
Each Holder of a Note, as a condition to the payment to such Holder of any
amount of principal which is being prepaid by the Company and to the payment to
such Holder of an amount representing the remaining principal due on such Note,
whether at the date specified for payment thereof in such Note or upon
prepayment thereof, shall surrender the same to the Paying Agent. If after such
payment with respect to any Note so surrendered, any principal will remain due
thereon, the Paying Agent shall deliver such Note to the Company and the
Company shall promptly return it to the Holder surrendering the same after
placing a notation thereon of the amount of principal prepaid and the date of
such prepayment. If no further interest or principal is due with respect to a
Note so surrendered, the Paying Agent shall deliver the same to the Trustee for
cancellation and the Trustee shall destroy canceled Notes (subject to any
applicable record retention requirement of the Exchange Act). The Company, by
written notice to the Trustee, may waive the requirement for surrender of Notes
either before or after payment of the last installment of principal or any
prepayment.
ARTICLE 3
PREPAYMENT
SECTION 3.01. COMPANY'S RIGHT TO PREPAY THE NOTES.
The Company has the right to prepay the Notes in whole or in part on any
Interest Payment Date. All prepayments shall be applied ratably to all Notes
outstanding. Any partial prepayment shall be applied against installments of
principal due on the Notes in the inverse order of the maturities of such
installments. Prepayments shall be made only to the Persons who are registered
Holders of the Notes on the applicable Record Date and shall be subject to the
requirements of Section 2.12.
SECTION 3.02. NOTICES TO TRUSTEE.
If the Company elects to prepay the Notes in whole or in part, it shall
furnish to the Trustee, at least 45 days but not more than 60 days before the
Interest Payment Date on which such prepayment will be made, an Officer's
Certificate setting forth (i) the Interest Payment Date on which such
prepayment is to be made, and (ii) the amount of principal to be prepaid.
SECTION 3.03. NOTICE OF PREPAYMENT.
At least 30 days but not more than 60 days before an Interest Payment Date
on which a prepayment shall be made, the Company shall mail or cause to be
mailed, by first class mail, a notice to each current Holder of Notes at their
registered address.
The notice shall state:
(a) the Interest Payment Date on which the prepayment shall be made;
(b) the amount of the prepayment;
(c) if the Notes are being prepaid in part, the portion of the principal
amount of the Notes being prepaid and to be outstanding thereafter and that,
after the Interest Payment Date on which the prepayment is being made and upon
surrender of the Notes, the Notes shall be returned to the Holders after the
Company shall place thereon a notation of the amount prepaid and the date of
such prepayment;
(e) the name and address of the Paying Agent;
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(e) that the Notes must be surrendered to the Paying Agent to collect the
amount being prepaid; and
(f) that, unless the Company defaults in making such prepayment, interest
on the amount being prepaid ceases to accrue on and after the Interest Payment
Date on which the prepayment is being made.
At the Company's request, the Trustee shall give the notice of prepayment
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the Interest
Payment Date on which the prepayment is to be made, an Officer's Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF PREPAYMENT.
Once notice of prepayment is mailed in accordance with Section 3.03
hereof, the amount to be prepaid shall become irrevocably due and payable by
the Company on the specified Interest Payment Date. A notice of prepayment may
not be conditional.
SECTION 3.05. DEPOSIT OF PREPAYMENT AMOUNT.
On or before 10:00 a.m. Eastern Time on the interest date specified for
any prepayment, the Company shall deposit with the Trustee or with the Paying
Agent immediately available funds sufficient to pay the amount to be prepaid
and all regularly due principal and accrued interest on all Notes due on such
Interest Payment Date. The Trustee or the Paying Agent shall promptly return to
the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the amount to be prepaid on
the Notes and all regularly due principal and accrued interest on the Notes on
such Interest Payment Date.
If the Company complies with the provisions of the preceding paragraph,
on and after the Interest Payment Date on which the prepayment is to be made,
interest shall cease to accrue on the principal portions of Notes being prepaid
whether or not such Notes are presented for such prepayment. If the Notes are
not prepaid in whole or in part upon surrender for prepayment because of the
failure of the Company to comply with the preceding paragraph, interest shall
be paid on the unpaid principal, from the Interest Payment Date on which the
prepayment was to be made until such principal is paid.
SECTION 3.06. NOTES PREPAID IN PART.
Upon surrender of a Note that has been prepaid in part, the Company shall
return the same to the Holder after placing a notation thereon of such
prepayment.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of and interest on
the Notes on the dates and in the manner provided in the Notes. Principal and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company, holds as of 10:00 a.m. Eastern Time on the due date money
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deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal and interest then due.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the State of Michigan an office or agency
(which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the State of
Michigan for such purposes. The Company shall give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.03. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, copies of the annual reports and
of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Company may be required to
file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the SEC, in accordance with rules and regulations prescribed
from time to time by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in records of the Registrar within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the SEC; and
(4) furnish to Trustee not less often than annually an Officer's
Certificate specifying such Officer's knowledge of the Company's
compliance with the conditions and covenants of this Indenture,
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and if the Company shall be in default, specify all such defaults and
the nature and status thereof of which such Officer may have knowledge.
The Company shall at all times comply with TIA Section 314(a).
SECTION 4.04. TAXES.
The Company shall pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
SECTION 4.05. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its
corporate existence in accordance with its articles of incorporation (as the
same may be amended from time to time), and (ii) the rights (charter and
statutory), licenses and material franchises of the Company; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not adverse in any material respect to the Holders
of the Notes.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the Notes
and this Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee; and (iii) immediately after such transaction no
Default or Event of Default exists.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into which or with which the
Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for, the Company (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Company" shall refer instead to the successor
corporation and not to the Company), and may exercise every right and power of
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on the
Notes (whether or not prohibited by Article 9 hereof);
(ii) default for five days in the payment when due of any principal
on the Notes (whether or not prohibited by Article 9 hereof);
(iii) failure by the Company for 30 days after notice from the
Trustee or the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes to comply with the provisions described under
Article 5 hereof;
(iv) failure by the Company for 60 days after notice from the
Trustee or the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes to comply with any of its other agreements in
this Indenture or the Notes;
(v) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company (or the payment of which
is guaranteed by the Company) whether such Indebtedness or guarantee now
exists, or is created after the date hereof, which default results in the
acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness the maturity of which
has been so accelerated, aggregates $5.0 million or more;
(vi) failure by the Company to pay final judgments aggregating in
excess of $5.0 million, which judgments are not paid, discharged or
stayed for a period of 60 days;
(vii) the Company pursuant to or within the meaning of Bankruptcy
Law;
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case,
(c) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become due; or
(viii) a court of competent jurisdiction enters an order or decree
in an involuntary case or proceeding under any Bankruptcy Law that:
(a) is for relief against the Company;
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(b) appoints a custodian of the Company or for all or
substantially all of the Company; or
(c) orders the liquidation of the Company; or
if any petition for the foregoing relief shall be filed against the
Company and such petition remains unstayed and in effect for 60
consecutive days.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
An Event of Default shall not be deemed to have occurred under clause (iv)
of this Section 6.01 until the Trustee notifies the Company, or the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes notify
the Company and the Trustee, of the Default and the Company does not cure the
Default within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default."
SECTION 6.02. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration all principal and interest on the Notes shall become immediately
due and payable.
At any time after a declaration of acceleration with respect to the Notes,
the Holders of a majority in aggregate principal amount of the Notes may
rescind and cancel such declaration and its consequences (i) if the rescission
would not conflict with any judgment or decree, (ii) if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration, (iii) if the Company
has paid the Trustee its reasonable compensation and reimbursed the Trustee for
its expenses, disbursements and advances and (iv) if, in the event of the cure
or waiver of an Event of Default of the type described in clauses (vii) or
(viii) of Section 6.01 hereof, the Trustee shall have received an Officer's
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal and interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by written notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences under this Indenture, except, subject to the second paragraph of
Section 6.02 hereof, a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes
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(including the failure to make any prepayment as to which notice was given to
the Holders of the Notes pursuant to Section 3.03) or a Default or Event of
Default with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Note affected.
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 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal and interest on the Note, on
or after the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of and interest remaining unpaid on the Notes and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any
money or other property payable or deliverable on any such claims and any
Custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties relating to the Notes or that the Holders may be entitled to receive
in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for any amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances, made by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for
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
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee, upon prior notice to the Company, may fix a Record Date and
payment date for any payment to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the duties, rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its 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 actually known to
the Trustee:
(i) the Trustee shall not be liable hereunder except for such duties
of the Trustee which shall be determined solely by the express provisions
of this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(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. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee shall not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability whatsoever in the performance of any
of its duties hereunder or in the exercise of any of its rights or powers
hereunder. The Trustee shall be under no obligation to exercise any of its
duties under this Indenture at the request of any Holders, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it in
its reasonable judgment against any loss, liability or expense that might be
incurred by it in compliance with such request or direction.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
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SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel. The Trustee may consult with
counsel and other experts and the advice of such counsel or expert or any
Opinion of Counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent (other than an agent
who is an employee of the Trustee) chosen in good faith.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it reasonably believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it in its reasonable judgment against any loss,
liability or expense that might be incurred by it in compliance with such
request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in accordance with the requirements of the TIA, in the event that the Trustee
acquires any conflicting interest as enumerated under Section 310 of the TIA
it must eliminate such conflict within 90 days or resign. Any Agent may do the
same with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the issuance of the Notes or pursuant
to this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of
the Default or Event of Default within 90 days after it occurs. Except
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in the case of a Default or Event of Default in payment of principal of or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each March 1 beginning with the March 1 following the
date hereof, and for so long as Notes remain outstanding, the Trustee shall
mail to the Holders of the Notes a brief report dated as of such reporting date
that complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company, each stock exchange on which the Notes are
listed and the SEC in accordance with TIA Section 313(d).
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee upon demand from time to time
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services, except any
disbursements, expenses and advances as may be attributable to the Trustee's
negligence or willful misconduct. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
reasonable costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or willful misconduct. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property
relating to the Notes or held or collected by the Trustee, except that held in
trust to pay principal of and interest on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (vii) or (viii) hereof occurs, the expenses
and the compensation for the services (including the reasonable fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
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As to notice of liens or charges, the Trustee shall comply with the
provisions of TIA Section 313(b)(2) to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying, the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor takes office, the Holders of a
majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who has been
a Holder of a Note for at least six months, fails to comply with Section 7.10,
such Holder of a Note may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall, if such resulting
surviving or transferee corporation is otherwise eligible hereunder, be the
successor Trustee.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or
state authorities and that has or has a corporate parent that has a combined
capital and surplus of at least $100.0 million as set forth in its most recent
published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 8.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 8.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's obligations to Holders
of Notes in the case of a merger or consolidation pursuant to
Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect
the legal rights hereunder of any Holder of a Note; or
(e) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of the Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Company in the execution
of any amended or supplemental Indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 8.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 8.02, this Indenture or the Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and, subject to Sections
6.02, 6.04 and 6.07 hereof, any existing Default or
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Event of Default (other than a Default or Event of Default in the payment of
principal of or interest on the Notes) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes).
In addition, any amendment to the provisions of Article 9 hereof will
require the consent of the Holders of at least 75% in aggregate principal
amount of the Notes then outstanding if such amendment would adversely affect
the rights of the Holders of the Notes.
Upon the request of the Company accompanied by a resolution of the Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 hereof, the Trustee
shall join with the Company in the execution of such amended or supplemental
Indenture unless such amended or supplemental Indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 8.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 8.02 becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.02, 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder affected, an amendment or waiver may not:
(i) reduce the principal amount of or interest on Notes whose
Holders must consent to an amendment, supplement or waiver;
(ii) reduce the principal of, interest on or change the fixed
maturity of any installment of principal on any Notes;
(iii) reduce the interest rate of or change the time for payment on
any Note;
(iv) waive a Default or Event of Default in the payment of principal
of or interest on the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in aggregate principal amount
of the Notes and a waiver of the payment default that resulted from such
acceleration);
(v) make any Note payable in money other than that stated in the
Notes;
(vi) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes;
(vii) waive any prepayment with respect to which notice has been
given to the Holders pursuant to Section 3.03 hereof; or
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(viii) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to his/her Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment
becomes effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a Record Date for the
purpose of determining the Holders of Notes entitled to consent to any
amendment, supplement or waiver. If a Record Date is fixed, then
notwithstanding the provisions of the second sentence of the preceding
paragraph, those Holders of Notes who were Holders on such Record Date (or
their duly designated proxies), and only those Holders, shall be entitled to
revoke any consent previously given, whether or not such Holder of Notes
continues to be a Holder of Notes after such Record Date. No such consent shall
be valid or effective for more than 90 days after such Record Date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder of Notes; provided that any such waiver shall not impair or affect
the right of any Holder to receive payment of principal of and interest on the
Notes, on or after the respective due dates expressed in such Notes, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder of Notes.
SECTION 8.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may (but is not required to) place an appropriate notation
about an amendment, supplement or waiver on any Note thereafter authenticated.
If an amendment, supplement or waiver changes the terms of the Notes, the
Company may require the Holders of the Notes to deliver the Notes to the
Trustee. The Company may place an appropriate notation on the Notes and return
them to the Holders. Alternatively, the Company in exchange for all Notes may
issue and the Trustee shall authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 8 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. The Company may not sign an
amendment or supplemental Indenture until the Board of Directors approves it.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in
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relying upon, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 9
SUBORDINATION
SECTION 9.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder of Notes by accepting a Note agrees,
that the payment of principal of and interest on, and all other Obligations in
respect of, the Notes (including, without limitation, any prepayment due on the
Notes scheduled as provided in Section 3.01, hereof, but not including the
Trustee's right to payment under Section 7.07) will be subordinated in right of
payment, to the extent and in the manner as set forth in this Article 9, to the
prior payment in full in cash of all Senior Debt, whether outstanding on the
date hereof or hereafter incurred.
SECTION 9.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(1) the holders of Senior Debt shall be entitled to receive payment in
full in cash of all Obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding at the rate specified in
the documents relating to the applicable Senior Debt, whether or not the claim
for such interest is allowed as a claim in such proceeding) before the Holders
of Notes shall be entitled to receive any payment on account of any Obligations
with respect to the Notes (except that all Holders of Notes may receive
Permitted Junior Securities); and
(2) until all Obligations with respect to Senior Debt (as provided in
subsection (1) above) are paid in full in cash, any distribution to which
Holders of Notes would be entitled but for this Article 9 shall be made to
holders of Senior Debt, as their interests may appear (except that Holders of
Notes may receive Permitted Junior Securities).
SECTION 9.03. DEFAULT ON SENIOR DEBT.
The Company may not make any payment or distribution to the Trustee or any
Holder of Notes on account of any Obligations in respect of the Notes (except
payments to the Trustee under Section 7.07) and may not acquire from the
Trustee or any Holder of Notes any Notes for cash or property (other than
Permitted Junior Securities) until all principal and other Obligations with
respect to the Senior Debt have been paid in full in cash if:
(i) a default in the payment of any principal or other Obligations
with respect to Senior Debt occurs and is continuing beyond any
applicable grace period (including any default in payment upon the
maturity of any Senior Debt by lapse of time, acceleration or otherwise)
in the agreement, indenture or other document governing such Senior Debt,
or any judicial proceeding is pending to determine whether any such
default has occurred; or
(ii) any other default occurs and is continuing with respect to
Senior Debt that then permits, or would permit, with the passage of time
or the giving of notice or both, holders of the Senior Debt as to which
such default relates to accelerate its maturity.
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The Company may and shall resume payments on and distributions in respect
of the Notes and may acquire them upon the earlier of:
(1) in the case of a payment default referred to in clause (i)
above, upon the date on which the default is cured or waived or otherwise
ceases to exist, unless another default, event of default or other event
that would prohibit such payment shall have occurred and be continuing,
or all Obligations in respect of such Senior Debt shall have been paid in
full in cash; or
(2) in the case of a nonpayment default referred to in clause (ii)
above, the date on which such nonpayment default is cured or waived.
SECTION 9.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated by the Trustee because of an Event
of Default, the Trustee shall promptly notify the Representatives for the
Senior Debt of the acceleration but the Trustee shall not be liable for failure
to give such notice.
SECTION 9.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes at a time when such payment is prohibited
under the terms of this Indenture, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered to the holders of Senior Debt as their interests may appear or their
Representatives, as their respective interests may appear, for application to
the payment of all Obligations with respect to Senior Debt remaining unpaid to
the extent necessary to pay such Obligations in full in cash in accordance with
their terms, after giving effect to any payment or distribution to or for the
holders of Senior Debt made concurrently with such payment received by the
Trustee or such Holder. Any distribution to the holders of Senior Debt or their
Representatives of assets other than cash may be held by such holders or such
Representatives as additional collateral without any duty to the Holder of
Notes to liquidate or otherwise realize on such assets or to apply such assets
to any Senior Debt or other Obligations relating thereto.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 9, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders of Notes or the
Company or any other Person money or assets to which any holders of Senior Debt
shall be entitled by virtue of this Article 9, except if such payment is made
as a result of the willful misconduct or negligence of the Trustee.
SECTION 9.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Notes to violate this Article 9, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt as provided
in this Article 9.
SECTION 9.07. SUBROGATION.
After all Senior Debt is paid in full in cash and until the Notes are paid
in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise
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payable to the Holders have been applied to the payment of Senior Debt. A
distribution made under this Article 9 to holders of Senior Debt that otherwise
would have been made to Holders is not, as between the Company and Holders, a
payment by the Company on the Notes.
SECTION 9.08. RELATIVE RIGHTS.
This Article 9 defines the relative rights of Holders of Notes and holders
of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders of Senior Debt to receive distributions and payments otherwise
payable to or received by Holders.
If the Company fails because of this Article 9 to pay principal of or
interest on a Note on the due date, the failure is nevertheless a Default or
Event of Default.
SECTION 9.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture regardless of any knowledge thereof that any such
Holder of Notes or holder of Senior Debt, as the case may be, may have or be
otherwise charged with. The holders of Senior Debt may extend, renew, restate,
supplement, modify or amend the terms of the Senior Debt or any Obligations
with respect thereto or any security therefor and release, sell or exchange
such security and otherwise deal freely with the Company and its Affiliates all
without incurring responsibility to any Holder or the Trustee, without
impairing or releasing the obligations of any Holder or the Trustee to the
holders of Senior Debt, and without affecting the liabilities and obligations
of the parties to this Indenture or the Holders.
Each Holder of the Notes by its acceptance thereof: (a) acknowledges and
agrees that the holders of any Senior Debt or their Representative, in its or
their discretion, and without affecting any rights of any holder of Senior Debt
under this Article 9, may foreclose any mortgage or deed of trust covering
interest in real property securing such Senior Debt or any guarantee thereof by
judicial or nonjudicial sale, even though such action may release the Company
or any guarantor of such Senior Debt from further liability under such Senior
Debt or any guarantee thereof or may otherwise limit the remedies available to
the holders thereof; and (b) hereby waives any defense that such Holder may
otherwise have to the enforcement by any holder of any Senior Debt or its
Representative against such Holder of this Article 9 after or as a result of
any action, including any such defense based on any loss or impairment of
rights of subrogation.
If at any time any payment of Obligations with respect to any Senior Debt
is rescinded or must otherwise be returned upon the insolvency, bankruptcy,
reorganization or liquidation of the Company or otherwise, the provisions of
this Article 9 shall continue to be effective or reinstated, as the case may
be, to the same extent as though such payments had not been made.
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SECTION 9.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representatives.
Upon any payment or distribution of assets of the Company referred to in
this Article 9, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representatives or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 9.
SECTION 9.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 9 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, or the taking of any action by the Trustee, and
the Trustee and the Paying Agent may continue to make payments on the Notes,
unless the Trustee shall have received at its Corporate Trust Office at least
five Business Days prior to the date of such payment written notice of facts
that would cause the payment of any Obligations with respect to the Notes to
violate this Article 9. Only the Company or a Representative or a holder of
Senior Debt that has no Representative may give the notice. Nothing in this
Article 9 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof. Nothing in this Section 9.11 is intended to or
shall relieve any Holder from the obligations imposed under Section 9.05 hereof
with respect to monies or other distributions received in violation of the
provisions hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 9.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 9, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes, including, in the event of any insolvency,
bankruptcy or receivership case or proceeding or any dissolution, winding-up,
liquidation, reorganization or other similar proceedings relative to the
Company (whether voluntary or involuntary and whether in bankruptcy, insolvency
or receivership proceedings or otherwise), the timely filing of a claim for the
unpaid balance of the Notes of such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the Trustee does
not file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the holders of Senior Debt and any
Representative are hereby authorized, and shall have the right (without any
duty), to demand, xxx for, collect, and receive the payments and distributions
in respect of the Notes which are required to be paid or delivered to the
holders of the Senior Debt as provided in this Article 9, and to file and prove
all claims therefor.
The Company, the Trustee and each Holder by their acceptance of the Notes,
acknowledge that damages would be inadequate to compensate the holders of
Senior Debt for any breach or default by the Company, the Trustee or any such
Holder of its obligations under this Article 9, and, therefore, agree that the
holders of Senior Debt and their Representatives shall be entitled to equitable
relief, including injunctive relief and specific performance, in the
enforcement thereof.
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SECTION 9.13. THIRD PARTY BENEFICIARY, ETC.
The foregoing provisions regarding subordination are solely for the
purpose of defining the relative rights of the holders of Senior Debt on the
one hand and the Holders of Notes on the other hand. Such provisions are for
the benefit of the holders of Senior Debt (and their successors and assigns)
and shall be enforceable by them directly against the Holders (and their
successors and assigns). This Article 9 shall constitute a continuing offer to
all Persons who become holders of, or who continue to hold, Senior Debt
(whether such Senior Debt was created or acquired before or after the issuance
of the Notes).
ARTICLE 10
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE OF THE INDENTURE
This Indenture will be discharged and will cease to be of further effect
as to all outstanding Notes when:
(a) all Notes theretofore authenticated and delivered (except lost, stolen
or destroyed Notes which have been replaced or paid and Notes for whose payment
money has theretofore been deposited in trust and thereafter repaid to the
Company) have been delivered to Trustee for cancellation; or
(b) (i) all Notes not theretofore delivered to Trustee for cancellation
have become due and payable by reason of the making of a notice of prepayment
or otherwise and the Company has irrevocably deposited or caused to be
deposited with Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on the Notes not
theretofore delivered to Trustee for cancellation of principal and accrued
interest to the date of maturity or prepayment and (ii) the Company has paid
all sums required to be paid by it under this Indenture.
As previously provided, the obligations of the Company under Section 7.07
shall survive the satisfaction and discharge of this Indenture.
SECTION 10.02. CONDITIONS TO SATISFACTION AND DISCHARGE OF THE INDENTURE
The Company shall deliver an Officers' Certificate to Trustee stating that
all conditions precedent to satisfaction and discharge have been complied with.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the duties imposed by TIA Section 318(c)
shall control.
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SECTION 11.02. NOTICES.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
BISSELL Inc.
0000 Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxxx & Xxxxx
000 Xxxxxx X.X., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
If to the Trustee:
First of America Bank, N.A.
Trust and Financial Services Division
0000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
The Company or the Trustee by written notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if sent by registered or certified mail; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives
it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
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SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Trustee
shall comply with Section 312(b). The Company, the Trustee, the Registrar and
any other Person shall have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee, at the
request of the Trustee:
(a) an Officer's Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the 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, he or she 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
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied; provided, however, that with respect
to matters of fact, an Opinion of Counsel may rely on an Officer's Certificate
or certificates of public officials.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Notes or this Indenture or for any claim based on, in
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respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes.
SECTION 11.08. GOVERNING LAW.
The internal law of the State of Michigan shall govern and be used to
construe this Indenture and the Notes.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or of any other Person. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall bind
their respective successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 11.11. 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.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.13. TABLE OF CONTENTS; HEADINGS; ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page.]
REMAINING PORTION INTENTIONALLY LEFT BLANK
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Dated as of March 15, 1998 BISSELL INC.
By: ___________________________
Name: ________________________
Title: _________________________
FIRST OF AMERICA BANK, N.A.
By: __________________________
Name: _______________________
Title: ________________________
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TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS AND INCORPORATION BY REFERENCE................. 1
SECTION 1.01. DEFINITIONS. ........................................... 1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. ..... 5
SECTION 1.03. RULES OF CONSTRUCTION. ................................. 5
ARTICLE 2 - THE NOTES.................................................. 5
SECTION 2.01. FORM AND DATING. ....................................... 5
SECTION 2.02. EXECUTION AND AUTHENTICATION. .......................... 6
SECTION 2.03. REGISTRAR AND PAYING AGENT. ............................ 6
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. ................... 6
SECTION 2.05. HOLDER LISTS. .......................................... 6
SECTION 2.06. TRANSFER AND EXCHANGE. ................................. 7
SECTION 2.07. REPLACEMENT NOTES. ..................................... 8
SECTION 2.08. OUTSTANDING NOTES. ..................................... 9
SECTION 2.09. TREASURY NOTES. ........................................ 9
SECTION 2.10. CANCELLATION. .......................................... 9
SECTION 2.11. DEFAULTED INTEREST OR PRINCIPAL. ....................... 9
SECTION 2.12. REQUIREMENT FOR SURRENDER OF NOTES UPON FINAL
MATURITY OR PREPAYMENT. ................................ 10
ARTICLE 3 - PREPAYMENT................................................ 10
SECTION 3.01. COMPANY'S RIGHT TO PREPAY THE NOTES.
SECTION 3.02. NOTICES TO TRUSTEE..................................... 10
SECTION 3.03. NOTICE OF PREPAYMENT................................... 10
SECTION 3.04. EFFECT OF NOTICE OF PREPAYMENT. ....................... 11
SECTION 3.05. DEPOSIT OF PREPAYMENT AMOUNT. ......................... 11
SECTION 3.06. NOTES PREPAID IN PART. ................................ 11
ARTICLE 4 - COVENANTS................................................. 11
SECTION 4.01. PAYMENT OF NOTES. ..................................... 11
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. ...................... 12
SECTION 4.03. REPORTS BY COMPANY..................................... 12
SECTION 4.04. TAXES. ................................................ 13
SECTION 4.05. CORPORATE EXISTENCE. .................................. 13
ARTICLE 5 - SUCCESSORS................................................ 13
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS. ............. 13
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. .................... 13
ARTICLE 6 - DEFAULTS AND REMEDIES..................................... 14
SECTION 6.01. EVENTS OF DEFAULT...................................... 14
SECTION 6.02. ACCELERATION........................................... 15
SECTION 6.03. OTHER REMEDIES......................................... 15
SECTION 6.04. WAIVER OF PAST DEFAULTS. .............................. 15
SECTION 6.05. CONTROL BY MAJORITY. .................................. 16
SECTION 6.06. LIMITATION ON SUITS. .................................. 16
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT. ........ 16
SECTION 6.08. COLLECTION SUIT BY TRUSTEE............................. 16
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. ..................... 17
SECTION 6.10. PRIORITIES. ........................................... 17
SECTION 6.11. UNDERTAKING FOR COSTS.................................. 17
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ARTICLE 7 - TRUSTEE.................................................. 18
SECTION 7.01. DUTIES OF TRUSTEE. .................................... 18
SECTION 7.02. RIGHTS OF TRUSTEE. .................................... 19
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. ......................... 19
SECTION 7.04. TRUSTEE'S DISCLAIMER................................... 19
SECTION 7.05. NOTICE OF DEFAULTS. ................................... 19
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES. ........... 20
SECTION 7.07. COMPENSATION AND INDEMNITY. ........................... 20
SECTION 7.08. REPLACEMENT OF TRUSTEE. ............................... 21
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. ..................... 21
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. ........................ 22
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...... 22
ARTICLE 8 - AMENDMENT, SUPPLEMENT AND WAIVER.......................... 22
SECTION 8.01. WITHOUT CONSENT OF HOLDERS OF NOTES................... 22
SECTION 8.02. WITH CONSENT OF HOLDERS OF NOTES....................... 22
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE ACT. .................. 24
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS...................... 24
SECTION 8.05. NOTATION ON OR EXCHANGE OF NOTES. ..................... 24
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC. ...................... 24
ARTICLE 9 - SUBORDINATION............................................. 25
SECTION 9.01. AGREEMENT TO SUBORDINATE. ............................. 25
SECTION 9.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY. ................. 25
SECTION 9.03. DEFAULT ON SENIOR DEBT. ............................... 25
SECTION 9.04. ACCELERATION OF NOTES.................................. 26
SECTION 9.05. WHEN DISTRIBUTION MUST BE PAID OVER. .................. 26
SECTION 9.06. NOTICE BY COMPANY...................................... 26
SECTION 9.07. SUBROGATION. .......................................... 26
SECTION 9.08. RELATIVE RIGHTS. ...................................... 27
SECTION 9.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. ......... 27
SECTION 9.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE............... 28
SECTION 9.11. RIGHTS OF TRUSTEE AND PAYING AGENT. ................... 28
SECTION 9.12. AUTHORIZATION TO EFFECT SUBORDINATION.................. 28
SECTION 9.13. THIRD PARTY BENEFICIARY, ETC. ......................... 29
ARTICLE 10 - SATISFACTION AND DISCHARGE............................... 29
SECTION 10.01. SATISFACTION AND DISCHARGE OF THE INDENTURE........... 29
SECTION 10.02. CONDITIONS TO SATISFACTION AND DISCHARGE OF THE
INDENTURE............................................. 29
ARTICLE 11 - MISCELLANEOUS............................................ 29
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. ........................ 29
SECTION 11.02. NOTICES. ............................................. 30
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH
OTHER HOLDERS OF NOTES................................ 31
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.... 31
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION......... 31
SECTION 11.06. RULES BY TRUSTEE AND AGENTS........................... 31
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS............................ 31
SECTION 11.08. GOVERNING LAW......................................... 32
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. ....... 32
SECTION 11.10. SUCCESSORS............................................ 32
SECTION 11.11. SEVERABILITY.......................................... 32
SECTION 11.12. COUNTERPART ORIGINALS................................. 32
SECTION 11.13. TABLE OF CONTENTS; HEADINGS; ETC. .................... 32
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EXHIBIT A TO INDENTURE
[_____]% SUBORDINATED NOTE
No. _____ $____________
BISSELL Inc., a corporation duly organized and existing under the laws of
Michigan (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _______________________, or registered assigns, the
principal sum of ________________ Dollars payable in seven installments each
equal to one-seventh (1/7th) of such principal sum (but not to exceed the
principal remaining unpaid) payable on each June 30 of the years 2002 through
2008, unless sooner paid, and to pay interest thereon from [_______], 1998 or
from the most recent interest payment date to which interest has been paid or
duly provided for, quarterly on March 31, June 30, September 30 and December 31
in each year (each an "Interest Payment Date"), commencing June 30, 1998,
at the rate of [__]% per annum, until the principal hereof is paid or made
available for payment.
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND (A) MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (2) IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
AND, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND ANY FOREIGN JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT
OF THE NOTES EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE.
THE PROVISIONS ON THE REVERSE HEREOF ARE A PART OF THIS NOTE AND
INCORPORATED HEREIN BY REFERENCE.
Dated: ________________
BISSELL Inc.
By_____________________________
Name:
Title:
This is one of the
Notes referred to in the
within-mentioned indenture:
Dated: ________, 1998
First of America Bank, N.A., as Trustee
By: __________________________
Name: _______________________
Title: ________________________
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Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. COMPUTATION OF INTEREST. Interest on this Note will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall make or cause to be made payments
in respect of all payments of principal and interest by mailing a check to the
Holder's registered address as determined on the applicable Record Date.
3. PAYING AGENT AND REGISTRAR. Initially, First of America Bank, N.A.,
the Trustee under the Indenture, will act as Paying Agent and Registrar.
Subject to restrictions and requirements for transfer described in the
Indenture, this Note may be presented for registration of transfer and exchange
at the offices of the Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as of
March 15, 1998 ("Indenture") among the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Section Section 77aaa-77bbbb). The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms.
5. PREPAYMENT. The Company has the right to prepay the Notes in whole or
in part on any interest payment date. All prepayments shall be applied ratably
to all Notes outstanding. Any partial prepayment shall be applied against
installments of principal due on the Notes in the inverse order of the
maturities of such installments. At least 30 days but not more than 60 days
before an interest payment date on which a prepayment shall be made, the
Company shall mail or cause to be mailed, by first class mail, a notice to each
Holder whose Notes are to be redeemed at its registered address providing the
details as to such prepayment.
6. SURRENDER OF NOTE. Each Holder of a Note, as a condition to the payment
to such Holder of any amount of principal which is being prepaid by the Company
and to the payment to such Holder of an amount representing the remaining
principal due on such Note, whether at the date specified for payment thereof
in such Note or upon prepayment thereof, shall surrender the same to the Paying
Agent. If after such payment with respect to any Note so surrendered, any
principal will remain due thereon, the Paying Agent shall deliver such Note to
the Company and the Company shall promptly return it to the Holder surrendering
the same after placing a notation thereon of the amount of principal prepaid
and the date of such prepayment.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in minimum denominations of $[____] and integral multiples of
$[___] in excess thereof. The transfer of Notes may be registered and Notes may
be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes or
similar governmental charge in connection with such transfer or exchange. The
Company need not exchange or register the transfer of any Note during the
period between a Record Date and the corresponding Interest Payment Date.
8. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes, provided that Holders entitled to receive
payments of interest or principal under a Note shall be determined only on the
15th day of the preceding calendar month (the "Record Date").
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9. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of the Notes, to provide for
the assumption of the Company's obligations to Holders of the
Notes in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act.
10. DEFAULTS AND REMEDIES. Each of the following constitutes an Event of
Default: (i) default for 30 days in the payment when due of interest, if any,
on the Notes (whether or not prohibited by Article 9 of the Indenture); (ii)
default for five days in payment when due of any installment of principal on
the Notes (whether or not prohibited by Article 9 of the Indenture); (iii)
failure by the Company for 30 days after notice from the Trustee or the Holders
of at least 25% in aggregate principal amount of the then outstanding Notes to
comply with the provisions described under Article 5 of the Indenture; (iv)
failure by the Company for 60 days after notice from the Trustee or the Holders
of at least 25% in aggregate principal amount of the then outstanding Notes to
comply with any of its other agreements in the Indenture or the Notes; (v)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company (or the payment of which is guaranteed by the Company)
whether such Indebtedness or guarantee now exists, or is created after the date
of the Indenture, which default results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other such Indebtedness the maturity of which has been so accelerated,
aggregates $5.0 million or more; (vi) failure by the Company to pay final
judgments aggregating in excess of $5.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days; and (vii) certain events of
bankruptcy or insolvency with respect to the Company.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately.
At any time after a declaration of acceleration with respect to the Notes,
the Holders of a majority in aggregate principal amount of the Notes may
rescind and cancel such declaration and its consequences (i) if the rescission
would not conflict with any judgment or decree, (ii) if all existing Events of
Default have been cured or waived except nonpayment of principal or interest,
if any, that have become due solely because of the acceleration, (iii) if the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances and (iv) if, in the event
of the cure or waiver of an Event of Default of the type described in clauses
(vii) or (viii) of Section 6.01 of the Indenture, the Trustee shall have
received an Officer's Certificate and an Opinion of Counsel that such Event of
Default has been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
Subject to the second paragraph of Section 6.02 of the Indenture, Holders
of a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Notes waive
any existing Default or Event of Default and its consequences under the
Indenture, except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes or a default with respect to any
covenant or provision which cannot be modified or amended without the consent
of the Holder of each outstanding Note affected.
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39
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required, upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
11. SUBORDINATION. Each Holder by accepting a Note agrees that the
payment of principal of and interest on, and all other Obligations in respect
of, each Note is subordinated in right of payment, to the extent and in the
manner provided in Article 9 of the Indenture, to the prior payment in full in
cash of all Senior Debt (whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of the Senior Debt.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
13. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants-in-common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants-in-common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
BISSELL Inc.
0000 Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Note subject to the restrictions and requirements described in
the Indenture, fill in the form below:
(I) or (we) assign and transfer this Note to:
_____________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Note on the books of the
Company. The agent may substitute another to act for him.
Date: _____________________ Your Signature:
_____________________________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee:
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41
EXHIBIT B TO INDENTURE
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER OF
SUBORDINATED NOTES
(Pursuant to Section 2.06 of the Indenture)
First of America Bank, N.A., as Trustee
Trust and Financial Services Division
0000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Department
Re: Subordinated Notes due June 2008 of BISSELL, Inc.
Dear Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 1998
(the "Indenture"), among BISSELL, Inc., as issuer (the "Company"), and First of
America Bank, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to $_________________ principal amount of Notes which
are evidenced by one or more Notes and registered with the Registrar in the
name of ______________ (the "Transferor"). The Transferor has requested an
exchange or transfer of such Note(s) in the form of an equal principal amount
of Notes evidenced by one or more Notes, to be delivered to the Transferor or,
in the case of a transfer of such Notes, to such Person as the Transferor
instructs the Trustee.
In connection with such request and in respect of the Notes surrendered to
the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
___ the Surrendered Notes are being delivered to the Registrar by
the Holder for registration in the name of the Holder, without
transfer, or such Note is being transferred to the Company;
___ the Surrendered Notes are being transferred pursuant to an
effective registration statement under the Securities Act; or
___ the Surrendered Notes are being transferred in reliance on an
exemption from the registration requirements of the Securities Act
and an Opinion of Counsel from the Holder or the transferee
reasonably acceptable to the Company and to the Registrar to the
effect that such transfer is in compliance with the Securities Act
and all applicable state or foreign securities laws is attached.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and each of you are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
with respect to the materials covered hereby.
____________________________________
Name of Transferor
Dated: _____________________ By: ________________________________
Name: ______________________________
Title: _______________________________
vi
cc: BISSELL, Inc.
0000 Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
