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XXXXXX RESOURCES, INC.,
as Issuer
AND
CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
as Trustee
INDENTURE
Dated as of February 1, 1999
Relating to the
13.02% SINKING FUNDCONVERTIBLE BONDS DUE DECEMBER 31, 2010
and the
13.02% SINKING FUND CONVERTIBLE BONDS DUE DECEMBER 31, 2015
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INDENTURE, dated as of February 1, 1999 (herein, as amended or supplemented
from time to time as permitted hereby, called this "Indenture"), between XXXXXX
RESOURCES, INC., a corporation organized and existing under the laws of the
State of New York (herein, together with its permitted successors and assigns,
called the "Issuer"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as trustee
(herein, together with its permitted successors in the trusts hereunder, called
the "Trustee").
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for two series of bonds consisting of its 13.02% Sinking Fund
Convertible Bonds due December 31, 2010 (the "2010 Bonds") and its 13.02%
Sinking Fund Convertible Bonds due December 31, 2015 (the "2015 Bonds") (the
2010 Bonds and the 2015 Bonds are collectively referred to herein as the
"Bonds"), issuable as provided in this Indenture. All covenants and agreements
made by the Issuer herein are for the benefit and security of the holders of the
Bonds. The Issuer is entering into this Indenture, and the Trustee is accepting
the trusts created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
All things necessary to make this Indenture a valid and binding agreement
of the Issuer in accordance with its terms have been done.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. General Definitions.
Except as otherwise specified or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Indenture, and the definitions of such terms are applicable to the singular
as well as to the plural forms of such terms and to the masculine as well as the
feminine and neuter genders of such terms. Whenever reference is made herein to
an Event of Default necessitating or involving action by the Trustee such
reference shall be construed to refer only to an Event of Default of which the
Trustee is deemed to have notice or actual knowledge.
All references in this instrument to designated "Articles," "Sections,"
"Subsections" and other subdivisions are to the designated Articles, Sections,
Subsections and other subdivisions of this instrument as originally executed.
The words "herein, "hereof," "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section,
Subsection or other subdivision.
"Accountants": A Person engaged in the practice of accounting who is a
certified public accountant of recognized national reputation and who (except
when this Indenture provides that an Accountant must be Independent) may be
employed by or affiliated with the Issuer, or an Affiliate of the Issuer.
"Act" and "Acts of Bondholders": With respect to any Bondholder, the
meaning specified in Section 17.03.
"Act of Bankruptcy": The filing of a voluntary or involuntary petition in
bankruptcy under the Bankruptcy Code or the commencement of a proceeding under
any other applicable law now or hereafter in effect concerning insolvency,
reorganization or bankruptcy by or against a debtor, provided, however, that any
such involuntary insolvency proceeding against such debtor stall not constitute
an Act of Bankruptcy if it has been dismissed within sixty (60) days following
the commencement thereof.
"Administrative Expenses": The fees and expenses of the Trustee and its
agents, accountants and legal counsel as contemplated hereunder.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control", when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and "common
control" have meanings correlative to the foregoing.
"Agent": Any Bond Registrar, paying agent or authenticating agent.
"Aggregate Outstanding Principal Amount": The principal amount of all
Outstanding Bonds at the date of determination.
"Authorized Issuer Representative": Each person at the time designated to
act on behalf of the Issuer by written certificate furnished to the Trustee
containing the specimen signature of such person.
"Authorized Officer": Any officer of the Issuer who is authorized to act
for the Issuer in matters relating to, and binding upon the Issuer, and whose
name appears on a list of such authorized officers furnished by the Issuer to
the Trustee, as such list may be amended or supplemented from time to time in
writing and furnished to the Trustee.
"Bankruptcy Code": The United States Bankruptcy Code, 11 U.S.C. Sections
101 et seq., as amended or supplemented from time to time.
"Board of Directors": The Board of Directors of the Issuer, or any
committee of that Board duly authorized under applicable law to act on behalf of
that Board, with respect to any matters arising under the Indenture.
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"Board Resolution": A copy of a resolution certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Trustee.
"Bond Interest Rate": With respect to the 2010 Bonds and the 2015 Bonds,
the rate of thirteen and two-tenths percent (13.2%) simple interest per annum.
"Bond Purchase Agreement": The subscription agreement or agreements dated
the Closing Date, between the Issuer and the Purchasers with respect to the
purchase of the Bonds.
"Bond Register" and "Bond Registrar": The respective meanings specified in
Section 2.04.
"Bondholder" or "Holder": The Person in whose name a Bond is registered on
the Bond Register.
"Bonds": The Bonds authorized by, and authenticated and delivered under,
this Indenture, consisting of the 2010 Bonds and the 2015 Bonds.
"Business Day": A day that is not a Saturday, Sunday, holiday or other day
on which commercial banking institutions or trust institutions in the city and
state of New York are authorized or obligated by law or required by executive
order or government decree to be closed.
"Closing Date": The date on which the Bonds are first executed,
authenticated and delivered to the Issuer or upon its order.
"Code": The Internal Revenue Code of 1986 and regulations thereunder, as
now or hereafter amended.
"Collateral": Cash plus those zero-coupon United States Treasury debt
obligations maturing on or before the stated Maturity of the Bonds, purchased by
the Trustee, pursuant to Section 3.02 of the Indenture for purposes of securing
repayment of principal of the Bonds, together with all substitutes therefor, and
all of the Funds, cash and proceeds held by the Trustee from time to time
hereunder (including amounts deposited with the Trustee on the Closing Date) and
all other property, tangible or intangible, in which the Issuer hereby grants
the Trustee a security interest hereunder.
"Collateral Purchase Sinking Fund": As defined in Section 6.06.
"Common Stock": The Common Stock, $.001 par value, of the Issuer.
"Conversion Shares" or "Conversion Stock": Shares of Common Stock issuable
upon conversion of the Bonds pursuant to Article IX hereof.
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"Corporate Trust Office": The office of the Trustee located in New York
City at which at any particular time its corporate trust business shall be
administered and which at the date of execution of this Indenture is located at
0 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Costs of Issuance": All costs incurred in connection with the borrowing
evidenced by the issuance of the Bonds, including (but not limited to): (1)
counsel fees and expenses (including Issuer's counsel and special counsel and
Trustee's counsel as well as any other specialized counsel fees incurred in
connection with the borrowing); (2) rating agent's fees, if any; (3) Trustee
fees and expenses incurred in connection with the borrowing; (4) accountant's
fees related to the issuance of the Bonds, if any; (5) printing costs for the
Bonds and offering materials; and (6) any other expenses and charges reasonably
related to or required to be paid in connection with the issuance of the Bonds.
"Costs of Issuance Fund": The Fund established from which the Costs of
Issuance will be paid.
"Co-Trustee": Any Person appointed as a co-trustee pursuant to this
Indenture.
"Date of Execution": The actual date of execution of this Indenture by the
Issuer and the Trustee as indicated by their respective acknowledgments hereto
annexed, and if the Issuer and the Trustee shall have executed this Indenture at
different dates, the later date.
"Debt Service Requirement": The dollar amount of principal and/or interest
due to the Bondholders on the next scheduled Payment Date.
"Default": Any event which is, or after notice or passage of time would be,
an Event of Default.
"Eligible Institution": A member of a registered national securities
exchange or the National Association of Securities Dealers, Inc., a commercial
bank or trust company or a participant in a medallion program acceptable to the
Trustee.
"Eligible Investments": Any one or more of the following obligations or
securities:
(i) non-callable direct obligations of, and obligations fully guaranteed
by, the United States of America, GNMA or any agency or instrumentality of the
United States of America the obligations of which are backed by the full faith
and credit of the United States of America having a stated maturity of no more
than one year;
(ii) demand and time deposits in, certificates of deposit of, and bankers'
acceptances issued by, any depository institution or trust company (including
the Trustee or any agent of the Trustee, acting in their respective commercial
capacities) incorporated under the laws of the United States of America, or any
state or the District of Columbia and subject to examination and supervision of
a federal or state banking authority, so long as (a) amounts so invested are
fully insured by the FDIC and are not required for use hereunder for at least
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seven (7) days after the stated maturity date of such investment or (b) at the
time of such investment or contractual commitment providing for such investment,
the commercial paper or other short term debt obligations of such depository
institution or trust company (or, in the case of a depository institution which
a principal subsidiary of a holding company, the commercial paper or other short
term debt obligations of such holding company) have the highest credit rating
then available from Standard & Poor's, Xxxxx'x, Xxxx & Xxxxxx or Fitch Investors
Service;
(iii) commercial paper having the highest short-term credit ratings from
Standard & Poor's, Xxxxx'x, Xxxx & Xxxxxx or Fitch Investors Service at the time
of such investment; and
(iv) a guaranteed investment contract issued by any insurance company or
other corporation which has the highest long-term credit rating from Standard &
Poor's, Xxxxx'x, Xxxx & Xxxxxx or Fitch Investors Service.
provided that, at all times, investment of trust funds shall conform to the
requirements of Article V hereof.
"Event of Default": The meaning specified in Section 14.01.
"FDIC": The Federal Deposit Insurance Corporation or any successor thereto.
"Fund(s)": The Collateral Purchase Fund, Debt Service Fund, the
Administrative Expenses Fund, the Costs of Issuance Fund and any other accounts
maintained by the Trustee.
"GNMA": The Government National Mortgage Association or any successor
thereto.
"Holder": The Person in whose name a Bond is registered on the Bond
Register.
"Indenture" or "this Indenture": This instrument as originally executed
and, if from time to time supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
as so supplemented or amended.
"Independent": When used with respect to any specified Person means such a
Person who (1) is in fact independent of the Issuer, any Affiliate of the Issuer
or any other obligor upon the Bonds, (2) does not have any direct financial
interest or any material indirect financial interest in the Issuer or in any
such other obligor or in an affiliate of the Issuer or such other obligor, and
(3) is not connected with the Issuer or any such other obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by an Issuer Order and acceptable to the Trustee and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof.
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"Interest Payment Date": Any Payment Date whereon interest on the Bonds is
due.
"Investment Earnings": Any interest or other earnings on all or part of the
Trust Estate.
"Issuer": Xxxxxx Resources, Inc., a corporation organized and existing
under the laws of the State of New York, and its successors and assigns.
"Issuer Order" and "Issuer Request": A written order or request signed in
the name of the Issuer by an Authorized Officer.
"Insurance Proceeds Fund": The fund established in accordance with Section
6.07.
"Maturity": With respect to any Bond, the date on which the entire unpaid
principal amount of such Bond becomes due and payable as therein or herein
provided, whether at the Stated Maturity date which is December 31, 2010 for the
2010 Bonds and December 31, 2015 for the 2015 Bonds, or by acceleration upon
declaration of an Event of Default.
"Notice of Redemption": As defined in Section 8.04.
"Officers' Certificate": A certificate signed by two (2) Authorized
Officers of the Issuer and delivered to the Trustee. Unless otherwise specified,
any reference in this Indenture to an Officers' Certificate shall be to an
Officers' Certificate of the Issuer.
"Opinion of Counsel": A written opinion of legal counsel and who may,
except as otherwise expressly provided in this Indenture, be Issuer's regular
legal counsel or in-house counsel and who shall be reasonably acceptable to the
Trustee.
"Original Aggregate Outstanding Principal Amount": The principal amount of
Bonds delivered by the Issuer and authenticated by the Trustee prior to any
Conversion or Redemption of any Bond.
"Outstanding Bond(s)": As of any given date, all Bonds theretofore
authenticated and delivered under this Indenture except:
(i) Bonds cancelled at or prior to such date or delivered to the Trustee on
or prior to such date for cancellation;
(ii) Bonds or portions thereof for whose payment or redemption money in the
necessary amount has been deposited with the Trustee in trust for the Holders of
such Bonds; provided, however, that if such Bonds are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision for
such notice, satisfactory to the Trustee, has been made;
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(iii) Bonds or portions thereof which have been converted pursuant to
Article IX hereof;
(iv) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory
to the Trustee is presented that any such Bonds are held by a holder in due
course; and
(v) Bonds alleged to have been destroyed, lost or stolen for which
replacement Bonds have been issued as provided for in Section 2.06,
provided, however, that in determining whether the Holders of the requisite
Aggregate Outstanding Principal Amount of Bonds have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Bonds owned by
the Issuer, any other obligor upon the Bonds or any Affiliate of the Issuer or
such other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, or waiver, only
Bonds which are listed on the Bond Register as being owned by such a Person
shall be so disregarded. As to any Bond, the Person in whose name the same shall
be registered on the Bond Register shall be deemed and regarded as the absolute
owner thereof for all purposes.
"Payment Date": The first day of each month following issuance of the
Bonds, or if any such day is not a Business Day, the next succeeding Business
Day. The first Payment Date shall be March 1, 1999. The final Payment Date shall
be the respective Maturity Date.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof or other legal entity as in the context may be appropriate.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchasers": The purchaser or purchasers of the Bonds from the Issuer
pursuant to the Bond Purchase Agreement.
"Record Date": The fifteenth of the month immediately preceding the month
of the related Payment Date. A date specified as a date on which the Holders of
Bonds entitled to receive a payment of principal or interest (or notice of a
payment in full of principal) on the succeeding Payment Date are determined.
"Redemption": Any early payment of the principal amount of any Bond
pursuant to Article VIII hereof.
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"Redemption Date": With respect to any date specified for payment of the
Redemption Price in accordance with Section 8.01 hereof.
"Redemption Price: An amount equal to one hundred and ten percent (110%) of
the outstanding principal amount of the Bonds being redeemed in accordance with
Section 8.01 plus accrued interest thereon to the Redemption Date.
"Responsible Officer": With respect to the Trustee, the chairman of the
board of directors, the president, a vice president, an assistant vice
president, an assistant secretary or an assistant treasurer in the Corporate
Trust Office of the Trustee.
"Series": A separate series of Bonds issued pursuant to this Indenture,
which Series consist of the 2010 Bonds and the 2015 Bonds.
"State": The State of New York.
"Stated Maturity": With respect to the entire unpaid principal amount of
any Bond, the date specified in such Bond as the fixed date on which the entire
remaining principal balance, if any, of the principal of such Bond is due and
payable, which is December 31, 2010 for the 2010 Bonds and December 31, 2015 for
the 2015 Bonds.
"Supplement": A supplemental indenture in accordance with Article XV of the
Indenture.
"Trust Estate": All money, instruments and other property subject or
intended to be subject to the lien of this Indenture for the benefit of the
Bonds as of any particular time, including all proceeds thereof.
"Trust Indenture Act" or "TIA": The Trust Indenture Act of 1939, as
amended.
"Trustee": Continental Stock Transfer & Trust Company or its successor in
interest, or any successor trustee appointed as herein provided.
"UCC": The Uniform Commercial Code as in effect in the applicable
jurisdiction.
ARTICLE II
THE BONDS
Section 2.01. Issuance of the Bonds.
(a) No Bonds may be issued under the provisions of this Indenture except in
accordance with this Article II as supplemented. There is hereby authorized and
created under this Indenture an issue of two Series of Bonds which are
designated "Xxxxxx Resources, Inc., 13.02% Sinking Fund Convertible Bonds due
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December 31, 2010" with respect to the 2010 Bonds and "Xxxxxx Resources, Inc.,
13.02% Sinking Fund Convertible Bonds due December 31, 2015" with respect to the
2015 Bonds.
(b) The Bonds shall be in substantially the form set forth in Exhibit A,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may, consistent herewith, be determined by the officers of the Issuer
executing such Bonds, as evidenced by their execution thereof. Any portion of
the text of any Bond may be set forth on the reverse thereof with an appropriate
reference on the face of the Bond.
Section 2.02. Denominations and Terms.
(a) Except as otherwise provided herein, all Bonds which may be authorized
and issued hereunder shall be limited to Thirty-Five Million Dollars
($35,000,000) in aggregate principal amount. The Bonds shall be issued as
typewritten or printed fully registered Bonds in initial minimum denominations
of five thousand dollars ($5,000) and any greater denomination shall be an
integral multiple of five thousand dollars ($5,000). Subsequent to their initial
issuance, the Bonds shall be authorized to be issued in any denomination.
Section 2.03. Interest and Principal.
(a) Interest shall accrue on the Bonds at the Bond Interest Rate from
February 1, 1999 until paid. Interest on the Bonds shall be payable on each
Payment Date and shall be computed on the basis of a three hundred sixty
(360)-day year on the Aggregate Outstanding Principal Amount of the Bonds on the
Record Date immediately preceding such Payment Date. Notwithstanding anything
herein to the contrary, the Bond Interest Rate on the Aggregate Outstanding
Principal Amount of the Bonds shall not exceed the maximum rate of interest
which may be charged to, or collected from, the Issuer thereof pursuant to the
applicable provisions of the federal or state law .
(b) The principal of each Bond shall be payable no later than the Stated
Maturity thereof unless the unpaid principal of such Bond becomes due and
payable at an earlier date upon acceleration following an Event of Default,
Redemption or as otherwise provided herein.
(c) All Bonds issued under this Indenture shall be in all respects equally
and ratably entitled to the benefits hereof without preference, priority or
distinction on account of the actual time or times of delivery, all in
accordance with the terms and provisions of this Indenture.
(d) Payments of principal, and interest due on a Bond on any Payment Date
shall be paid to the Holder of such Bond on the applicable Record Date
immediately preceding such Payment Date. The Trustee will make payments of
principal of, and interest on the Bonds by checks mailed on the Payment Date to
the Bondholders listed in the Bond Register.
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(e) Notwithstanding any of the foregoing provisions with respect to
payments of principal of, premium, if any, and interest on the Bonds, if the
Bonds have become or have been declared due and payable upon acceleration
following an Event of Default and such acceleration of maturity and its
consequences have not been rescinded and annulled then payments of principal of,
premium, if any, and interest on the Bonds shall be made in accordance with
Article XIV.
Section 2.04. Registration, Registration of Transfer and Exchange.
(a) The Issuer shall cause books for the registration and transfer of the
Bonds (the "Bond Register") to be kept at the Corporate Trust Office and hereby
appoints the Trustee as its registrar and transfer agent ("Bond Registrar") to
keep such books and to make such registrations and transfers under such
reasonable regulations as the Trustee may prescribe.
(b) Upon surrender for registration of transfer of any Bond at the
Corporate Trust Office, the Issuer shall execute and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, a new fully registered Bond or Bonds of authorized denominations in
the aggregate principal amount which the registered owner is entitled to
receive. All Bonds delivered and exchanged shall be dated so that neither gain
nor loss in interest shall result from the transfer or exchange. All Bonds
presented for transfer, exchange, registration, Redemption or payment shall be
duly endorsed or be accompanied by a written instrument or instruments of
transfer or authorization for exchange, in form satisfactory to the Issuer and
the Trustee, duly executed by the Holder or by his attorney, duly authorized in
writing which signature shall be guaranteed by an Eligible Institution and shall
be accompanied by such documents as the Trustee may require.
(c) The Trustee shall require payment by the Holder or its transferee of a
sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection with any registration, registration of transfer or
exchange. Such charges and expenses shall be paid before any such new Bond shall
be delivered. All Bonds issued upon any registration of transfer or exchange
shall be valid obligations of the Issuer, evidencing the same current principal
amount as the Bond surrendered, shall be secured by this Indenture and shall be
entitled to all of the security and benefit hereof to the same extent as the
Bonds surrendered upon such registration of transfer or exchange.
(d) No transfer of a Bond shall be made unless such transfer is exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act"), and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is to be made, the Trustee
or the Issuer may require (i) an Opinion of Counsel (which may be rendered by
salaried counsel employed by the Bondholder or the prospective transferee or an
Affiliate thereof) in form and substance reasonably acceptable to the Trustee
and the Issuer to the effect that such transfer may be made pursuant to an
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exemption, describing the applicable exemption and the basis therefor, and that
such transfer is being made pursuant to said Act and laws, which Opinion of
Counsel shall not be an expense of the Trustee or the Issuer, and (ii) that the
transferee shall execute an investment letter in form and substance reasonably
acceptable to the Issuer certifying to the Issuer the facts surrounding such
transfer, which investment letter shall not be an expense of the Trustee or the
Issuer. The Holder of a Bond by the acceptance of such Bond pursuant to a
transfer does thereby agree to indemnify the Trustee and the Issuer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Section 2.05. Execution, Authentication and Delivery.
(a) The Bonds shall be executed on behalf of the Issuer by an Authorized
Officer under its corporate seal, which may be in facsimile form and may be
imprinted or otherwise reproduced thereon, and attested by a separate Authorized
Officer. The signature of any Authorized Officer on the Bonds may be manual or
facsimile. Bonds bearing the manual or facsimile signature of individuals who
were at the time of execution of the Bonds Authorized Officers of the Issuer,
and identified as an Authorized Officer hereunder, shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to be
authorized at the date of the authentication and delivery of such Bonds or did
not hold such offices at the date of such Bonds. The Bonds shall be dated as of
the date of authentication.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Bonds executed by the Issuer to the
Trustee for authentication; and the Trustee shall authenticate and deliver such
Bonds as provided in this Indenture and not otherwise.
(c) No Bond shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Bond a
certificate of authentication, substantially in the form set forth in Exhibit A,
with such appropriate information included in such form, executed by the Trustee
by the manual signature of a natural person authorized by the Trustee to execute
such certificate, and such certificate upon any Bond shall be conclusive, and
the only evidence, that such Bond has been duly authenticated and delivered
hereunder.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Bonds.
(a) If (i) any mutilated Bond is surrendered to the Trustee, or the Issuer
and the Trustee receives evidence to their satisfaction of the destruction, loss
or theft of any Bond, and (ii) there is delivered to the Issuer and the Trustee
such security and indemnity as may be reasonably required by each of them to
hold each of them harmless (including a lost instrument bond), then, in the
absence of written notice to the Issuer or the Trustee that such Bond has been
acquired by a bona fide purchaser, the Issuer shall execute and, upon its
request, the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Bond, a new Bond of like tenor
and principal amount, bearing a number not contemporaneously outstanding;
provided, however, that if any such mutilated, destroyed, lost or stolen Bond
shall have become or shall be about to become due and payable, then, instead of
issuing a new Bond, the Issuer may pay such Bond without surrender thereof,
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except that any mutilated Bond shall be surrendered. If, after the delivery of
such new Bond or payment of a destroyed, lost or stolen Bond pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original Bond in
lieu of which such new Bond was issued presents for payment such original Bond,
the Issuer, and the Trustee shall be entitled to recover such new Bond (or such
payment) from the Person to whom it was delivered or any Person taking such new
Bond from such Person, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expenses incurred by the Issuer and the Trustee in
connection therewith.
(b) Upon the issuance of any new Bond under this Section, the Issuer or the
Trustee may require the payment by the Holder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
(c) Every new Bond issued pursuant to this Section 2.06 in lieu of any
mutilated, destroyed, lost or stolen Bond shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Bond shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Bonds duly issued hereunder.
(d) The provisions of this Section 2.06 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Bonds.
Section 2.07. Cancellation and Destruction of Surrendered Bonds.
All Bonds surrendered for payment, registration of transfer or exchange
shall, if surrendered to any Person other than the Bond Registrar, be delivered
to the Bond Registrar and shall be promptly cancelled by it. The Issuer may at
any time deliver to the Bond Registrar for cancellation any Bond previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the
Bond Registrar. No Bonds shall be authenticated in lieu of or in exchange for
any Bonds cancelled as provided in this Section, except as expressly permitted
by this Indenture. The Bond Registrar is hereby directed to destroy all
cancelled Bonds unless the Issuer shall direct otherwise by an Issuer Order. The
Trustee shall deliver to the Issuer a certificate of destruction in respect to
all Bonds so destroyed.
Section 2.08. Home Office Payment Agreements.
Notwithstanding any term of this Indenture or of any Bonds to the contrary,
the Trustee, if requested, by prior written instructions, shall be obligated to
enter into an agreement with any Holder of Bonds which is an institutional
investor, and may enter into an agreement with any other Holder, providing for
payment to such Holder of the principal of and interest on, the Bonds or any
part thereof at a place within the continental United States other than the
place specified in such Bonds as a place for such payment, and including by bank
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wire transfer of Federal or other immediately available funds, except that the
final payment of interest on and principal of the Bonds upon the Maturity Date
shall only be made against surrender of the Bonds as set forth in this
Indenture.
Section 2.09. Persons Deemed Owners.
Prior to due presentment for registration of transfer or exchange of any
Bond, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name such Xxxx is registered on the Bond Register as
the owner of such Bond (a) on the applicable Record Date for the purpose of
receiving payments of the principal of and interest on such Bond and (b) for all
other purposes whatsoever, whether or not such Bond is overdue, and neither the
Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected
by notice to the contrary.
Section 2.10. Bonds Not Presented For Payment.
In the event any Bonds shall not be presented for payment when the final
principal repayment thereof becomes due, whether at Maturity, or upon the
acceleration of Maturity, if monies sufficient to pay such Bonds are held by the
Issuer, the Issuer shall deliver such funds to the Trustee who will segregate
and hold such monies in trust, and the Holders of such Bonds shall, except as
provided in the following paragraph, thereafter be restricted exclusively to
such funds for the satisfaction of any claim of whatever nature on their part
under this Indenture or relating to said Bonds.
Any money deposited with the Trustee or any paying agent in trust for the
payment of the principal of or interest on any Bond and remaining unclaimed for
one (1) year after such principal or interest has become due and payable shall
be paid to the Issuer; and the Holder of such Bond shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and all
liability of the Trustee or such paying agent with respect to such trust money
(but only to the extent of the amounts so paid to the Issuer), shall thereupon
cease; provided, however, that no such release of payment shall be made unless
the Trustee or such paying agent, before being required to make any such release
of payment, may at the expense of the Issuer cause to be published once, in The
Wall Street Journal, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30) days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer.
Section 2.11 Priority of Bonds.
Subject to the priority rights of the Trustee , the rights of the Holders
to receive the principal sum or any part thereof, and to receive the interest
due on the Bonds is and shall remain equal in priority to the payment of the
principal of and interest on (i) all future obligations and guarantees of the
Issuer for money borrowed from any bank, trust company, insurance company or
other financial institution engaged in the business of lending money, for which
the Issuer is at the time of determination responsible or liable as obligor or
guarantor, (ii) all future obligations of the Issuer secured by a lien,
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mortgage, pledge or other encumbrance against real or personal property of the
Issuer, and (iii) any modifications, renewals, extensions or refunding of the
foregoing, except for any of such obligation of the Issuer the payment of which
is made expressly subordinate and junior to the Bonds.
ARTICLE III
ISSUANCE OF BONDS
Section 3.01. Issuance of Bonds.
The Issuer may issue the Bonds following the execution of this Indenture
and upon compliance by the Issuer with the conditions set forth in Section 3.02.
Thereupon, the Trustee shall, upon receipt of an Issuer Request, authenticate
such Bonds and deliver them as specified in the Issuer Request against payment
therefor to the Issuer. The Trustee shall be entitled to rely upon the Issuer
Request under this Article III as full evidence that the Issuer has received
upon or prior to the Trustee's delivery of the Bonds, the proceeds from the sale
of the Bonds, which proceeds, may be paid directly to the Issuer or to any
Person designated by the Issuer.
Section 3.02. Conditions to Issuance.
(a) The Bonds may be executed by the Issuer and delivered to the Trustee
for authentication and, thereupon, the same shall be authenticated and delivered
by the Trustee upon receipt of an Issuer Request, compliance with the conditions
of this Section 3.02 and receipt by the Trustee (in form and substance
satisfactory to the Trustee and Counsel for the Trustee) of, or compliance with,
as the case may be, the following:
(i) A Board Resolution authorizing the execution and delivery of the
Indenture and the issuance, execution, authentication and delivery of the
Bonds to be authenticated and delivered.
(ii) An Opinion of Issuer's Counsel dated the Closing Date in form and
substance satisfactory to the Trustee.
(iii) An Officers' Certificate dated the Closing Date stating that:
(A) there is no Default or Event of Default under the Indenture;
(B) the execution and delivery of, and performance by the Issuer
of its obligations under the Indenture, the Bond Purchase Agreements,
and the other documents to which it is a party pursuant thereto, the
execution, issuance and delivery of the Bonds and compliance with the
conditions thereof under the circumstances contemplated thereby will
not conflict with, or result in any breach or default under, the
Issuer's Certificate of Incorporation or bylaws, and will not result
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in a breach or default under, or conflict in any material respect
with, or violate any governmental rule or regulation applicable to the
Issuer or its operations, or any indenture, mortgage, deed of trust or
other agreement or instrument to which the Issuer is a party or by
which it or its property is bound, or any existing state or federal
law, ordinance, administrative ruling or regulation, or any order of
any court or administrative agency entered in any Proceeding to which
the Issuer is a party or by which it or its property may be bound or
to which it or its property may be subject;
(C) the representations and warranties of the Issuer contained
herein are true and correct;
(D) there has been compliance with all conditions precedent
provided in this Indenture relating to the authentication and delivery
of the Bonds applied for;
(E) neither the Issuer nor, to the knowledge of such Officers,
any Person acting on its behalf has offered or sold the Bonds by any
form of general solicitation or general advertising, including but not
limited to any advertisement, article, notice or other communication
published in a newspaper, magazine or similar media or broadcast over
television or radio or any seminar or meeting whose attendees were
invited by general solicitation or general advertising.
(iv) An Issuer Request directing the Trustee to deliver the Bonds to
the Purchasers on behalf of the Issuer.
(v) The disbursement of the Costs of Issuance on the Closing Date.
(vi) The purchase or other acquisition of the Collateral by the
Trustee.
(vii) Such other documents and Opinions of Counsel as the Trustee (or
the Placement Agent for the Bonds) may reasonably require.
ARTICLE IV
SECURITY INTEREST; COLLATERAL
Section 4.01. Absolute Grant of Collateral.
The Issuer does hereby transfer, assign and set over to the Trustee for the
benefit of the Bondholders, without recourse, the original Collateral or that
amount of the proceeds from the sale and issuance of the Bonds as may be
required on the Closing Date for the Trustee to purchase the original Collateral
in its own name as Trustee for the Bondholders, and upon satisfaction and
discharge of the Indenture in accordance with Article X hereof, as Trustee for
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the Issuer. The title of the Trustee to the Collateral and all monies due or to
become due with respect thereto including, without limiting the generality of
the foregoing, the proceeds and products thereof and any substitutions therefor
or additions thereto, now existing or hereinafter acquired, shall be
unconditional, and shall be used to secure (i) all payments required to be made
by the Issuer with respect to the Bonds; (ii) the performance and observance by
the Issuer of its agreements and covenants hereunder and under the Bonds; and
(iii) the payment of any and all other liabilities of the Issuer under the Bonds
and this Indenture, direct or indirect, absolute or conditional, now due or to
become due, or now existing or hereafter arising. Upon satisfaction and
discharge of this Indenture, the Trustee shall disburse the Collateral as
directed by the Issuer in an Issuer Order.
ARTICLE V
INVESTMENTS
Section 5.01. General Investments.
The Trustee shall invest and reinvest monies held in any Fund established
by this Indenture in accordance with an Issuer Order or Orders, but only in one
or more Eligible Investments. In computing the amount in any Fund created
hereunder, obligations purchased as an investment of monies therein shall be
valued at the market value of such obligations, exclusive of any accrued but
unpaid interest. Such computations of amount shall be determined whenever
required pursuant to the terms of this Indenture.
Section 5.02. General Provisions Regarding Funds.
(a) The Trustee shall not invest the proceeds of any Funds held hereunder
or sell any investment held hereunder unless the security interest granted and
perfected in such Fund will continue to be perfected in such investment or the
proceeds of such sale.
(b) Earnings on investments shall be credited to, and losses shall be
charged to, the particular Fund from which such investment was made.
(c) Neither the Trustee nor the Issuer shall, in any way, be held liable or
responsible by reason of any insufficiency in any Fund resulting from any loss
on any Eligible Investment or Collateral included therein.
ARTICLE VI
ACCOUNTS AND ACCOUNTINGS
Section 6.01. Collection of Money.
Except as otherwise expressly provided herein, the Trustee shall collect
directly and without intervention or assistance of any agent or other
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intermediary, all money and other property payable to or receivable by the
Trustee pursuant to this Indenture.
Section 6.02. Creation of Funds.
On or before the Closing Date, the Trustee shall establish on its records
the following accounts and funds (collectively referred to as the "Funds") to be
maintained by the Trustee for the benefit of the Holders:
(a) Administrative Expenses Fund
(b) Debt Service Fund
(c) Collateral Purchase Sinking Fund
All monies deposited in the Funds shall be used solely for the purposes set
forth in this Indenture.
Section 6.03. Deposit of Bond Proceeds.
The purchase price of the Bonds deposited with the Trustee by wire transfer on
the Closing Date shall be deposited or disbursed by the Trustee on the Closing
Date upon an Issuer Order as follows:
(a) The amount required by Section 6.04 for the Administrative
Expenses Fund;
(c) The amount required by Section 6.05 for the Debt Service Fund;
(d) The amount required by Section 6.06 for the Collateral Purchase
Sinking Fund;
(e) The balance shall be disbursed as directed by the Issuer.
Section 6.04. Administrative Expenses Fund.
(a) The Trustee shall, on the Closing Date, establish the Administrative
Expenses Fund into which an amount equal to $______ shall be deposited.
(b) Any portion of the Administrative Expenses Fund not disbursed to pay
the Trustee's fees and expenses at the Closing Date shall be invested and
reinvested by the Trustee at the direction of the Issuer pursuant to an Issuer
Order in one or more Eligible Investments. All income or other gain from such
investments shall be credited to such Administrative Expenses Fund and any loss
resulting from such investments shall be charged to such Administrative Expenses
Fund. If the Administrative Expenses Fund is insufficient, in the reasonable
opinion of the Trustee, to pay the Administrative Expenses contemplated by this
Indenture, the Issuer shall, upon written notice from the Trustee, deposit
additional funds into such Fund.
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Section 6.05. Debt Service Fund.
Seven (7) Business Days before each Payment Date, or earlier at the
discretion of Issuer, the Issuer shall deposit into the Debt Service Fund an
amount equal to the next scheduled debt service payment of interest and/or
principal. Such monies will be invested in Eligible Investments by the Trustee
pursuant to an Issuer Order pending disbursement on the Payment Date.
Section 6.06. Collateral Purchase Sinking Fund.
As and for a sinking fund for the retirement of the Bonds, the Company, as
long as any of the Bonds shall be outstanding, shall pay to the Trustee on or
before the Business Day which next precedes December 31 in each year commencing
with the year 1999 to and including 2010 with respect to the 2010 Bonds and 2015
with respect to the 2015 Bonds, cash payments or cash sufficient in amounts to
purchase U.S. Treasury Bonds or Notes maturing on or before December 31, 2010
with respect to the 2010 Bonds and December 31, 2015 with respect to the 2015
Bonds (each such Business Day being herein referred to as a "Sinking Fund
Payment Date"), (herein referred to as a "Sinking Fund Payment") in an amount
payable at their maturity equal to 8.33% of the principal amount of the then
outstanding 2010 Bonds and equal to 5.88% of the principal amount of the then
outstanding 2015 Bonds. Not later than December 1 of each year, the Company
shall deliver to the Trustee an Officers' Certificate which will specify the
amount of the Sinking Fund Payment thus calculated.
Sinking Fund Payments shall not be applied to the payment of interest on
Bonds. At its option, the Company may reduce its obligation to make any Sinking
Fund Payment in cash by delivering to the Trustee not later than the December 1
next preceding the Sinking Fund Payment Date, for credit against such Sinking
Fund Payment, Bonds which have been acquired by the Company and an Officers'
Certificate stating the election of the Company to have credited against such
Sinking Fund Payment the principal amount of Bonds to be delivered.
Section 6.07. Information by Trustee.
The Trustee shall supply in a reasonably timely fashion to the Issuer any
information readily available to the Trustee that the Issuer may from time to
time reasonably request with respect to any of the Funds established hereby or
for any other information reasonably available to the Trustee.
Section 6.08. Reports.
At least fifteen (l5) days prior to each Payment Date, if and to the extent
requested by the Issuer, the Trustee shall provide the Issuer with the "Trustee
Accounting Report," which shall contain the following information as of the
immediately preceding Payment Date:
(i) The next interest and/or principal installment due and payable on
the Bonds since the last Payment Date and the balance, if any, of the Debt
Service Fund;
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(ii) The Aggregate Outstanding Principal Amount of the Bonds as of the
last Payment Date;
(iii) The balance in the Administrative Expense Fund and Debt Service
Fund on the last Payment Date, if any; and
(iv) Administrative Expenses paid during the period preceding the
lastest Payment Date;
provided, however, the Trustee shall not be required to include any information
in such report if such information was previously furnished or otherwise made
available to the Issuer.
ARTICLE VII
APPLICATION OF MONIES
Section 7.01. Disbursements of Monies from the Funds.
The Trustee shall withdraw from the appropriate Fund amounts sufficient for
the following purposes in the following order of priority:
(a) In the event the Trustee has not otherwise been paid its fees,
costs and disbursements, the Trustee may withdraw sufficient funds from the
Administrative Expenses Fund for such purposes; and
(b) On each Payment Date, from the Debt Service Fund, the Trustee
shall pay the sum of interest and principal, if any, then due and payable
on the Bonds to the Bondholders. If the Debt Service Fund is insufficient
for such purposes, the Trustee shall advise the Issuer in writing at least
five (5) calendar days prior to such Payment Date, and, if sufficient funds
are not deposited by the Issuer to cover such shortfall in time for the
Trustee to make the next scheduled payment of interest or principal, the
Trustee shall provide notice of same to the Bondholders within ten (10)
Business Days after such Payment Date.
ARTICLE VIII
REDEMPTION OF BONDS
Section 8.01. Redemption at the Option of the Issuer.
The Bonds shall be redeemable in whole or in part at the option of the
Issuer for the Redemption Price upon notice to the Trustee at any time on or
after January 1, 1999 upon satisfaction of the following conditions:
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(a) The Common Stock issuable upon Conversion of the Bonds shall be
the subject of an effective registration statement with the Securities and
Exchange Commission;
(b) The Common Stock shall be listed on the NASDAQ system or a
national or regional securities exchange, and shall have an average daily
trading volume for the ninety (90) trading days prior to the Notice of
Redemption of at least one thousand (1,000) shares;
(c) The average bid price for the Common Stock for the ninety (90)
trading days prior to the Notice of Redemption (calculated by summing the
ninety (90) daily average bid prices and dividing by ninety (90)) shall
have been at least one hundred thirty-three percent (133%) of the
Conversion Rate at the date of the Notice of Redemption; and
(d) The Issuer shall provide the Trustee with an Officers' Certificate
certifying that all of the foregoing conditions have been satisfied, and the
Trustee may conclusively rely upon such Officers' Certificate.
Section 8.02. General Requirements.
(a) In the event of a partial Redemption, such Redemption shall be
made pro rata among the Holders of the Bonds by redeeming from each Holder
that principal amount of Bonds which bears the same proportion to the
principal amount of Bonds registered in the name of such Holder as the
total available monies to be distributed on the Redemption Date bears to
the Aggregate Outstanding Principal Amount of the Bonds prior to such
Redemption. In the event a strict pro rata Redemption among all the Holders
cannot be made, the Issuer may redeem more than a pro rata portion from one
or more of the Holders of Bonds in such manner as the Trustee deems fair
and reasonable; provided, however, that at no time shall the pro rata
portion of the Bonds theretofore redeemed or to be redeemed in part from
any Holder exceed by one hundred dollars ($100) of the principal amount,
the principal portion of Bonds of such Holder which would be redeemed or
which would have been redeemed on a strict pro rata basis.
(b) In the event that less than the entire principal amount of a Bond
shall be redeemed on the Redemption Date, the Trustee shall make
appropriate entries on the Bond Register to reflect the portion thereof so
redeemed and the amount of principal of such Bond remaining outstanding,
and the Holder thereof shall surrender such Bond to the Trustee for like
notation of such information thereon on the blanks provided therefor. The
Trustee's entry on the Bond Register shall be conclusive in the absence of
manifest error as to the outstanding principal amount of any Bond.
(c) All amounts held by the Trustee or Issuer due to non-presentment
of Bonds on any Redemption Date must be paid over to and retained by the
Trustee for a period of at least one (1) year after the final maturity date
or applicable Redemption Date. If after one (1) year any Bond has not been
presented for payment, the Holder of such Bond shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof.
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Section 8.03. Payment of Redemption Price.
Payment of the Redemption Price shall be made by the Trustee to or upon the
order of the Holder of the Bonds called for Redemption upon surrender of the
Bond to the Trustee. The Trustee shall enter a notation on the Bond Register of
the amount of any partial Redemption of a Bond. The Redemption Price shall be
payable to the Bondholders by check (or if the necessary information is provided
by the Bondholder, by wire transfer) to the Persons whose names appear as the
registered Holders thereof on the Bond Register as of the Record Date applicable
to such Redemption Date and identified in such notice of Redemption. In the
event of a partial Redemption, the Bondholder shall surrender the Bond to be
partially redeemed to the Trustee for a notation to be made thereon. The
expenses of giving notice and any other expenses of Redemption (except accrued
interest) shall be an Administrative Expense payable by the Trustee from the
Administrative Expense Fund.
Section 8.04. Form of Redemption Notice.
(a) Notices of Redemption of Bonds shall be prepared by the Issuer and
given by the Trustee in the name and at the expense of the Issuer at the
following times and to the following Persons:
Notice of any Redemption of the Bonds shall be mailed by registered
mail no later than sixty (60) days prior to such Redemption Date to the
Persons who were Holders of the Bonds to be redeemed on the related Record
Date;
(b) All notices of Redemption shall state:
(i) the Record Date and the Redemption Date,
(ii) the Redemption Price,
(iii) the name and address of the Paying Agent (which may be the
Trustee),
(iv) that on such Redemption Date the Redemption Price will
become due and payable with respect to the principal amount of each
Bond as shall be specified in such notice, that the amount payable in
respect of the principal amount of each such Bond so redeemed shall be
limited to the Redemption Price therefor, that no interest shall
accrue on such principal amount of Bonds to be redeemed for any period
after the Redemption Date, and
(v) the Conversion Rate in effect on such Redemption Date, the
date on which the Holder's right to convert the Bond will terminate,
and the manner and place where the Bond may be surrendered for
Conversion (as defined in Article IX hereof).
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(c) Failure to give notice of Redemption, or any defect therein, to
any Holder of any Bond selected for Redemption shall not impair or affect
the validity of the Redemption of any other Bond.
Section 8.05. Bonds Payable on Redemption Date.
Notice of Redemption having been given, the Bonds or portions thereof to be
redeemed shall, on the applicable Redemption Date, become due and payable at the
Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price, in which event the Bond shall remain in full force and effect
until the Redemption Price is paid in full) no interest shall accrue on such
Redemption Price for any period after such Redemption Date.
Section 8.06. Redemption at the Option of the Bondholders.
(a) The Holders of the Bonds may tender Bonds or portions thereof to
the Trustee for repurchase by the Issuer at a price of one hundred percent
(100%) of the principal amount thereof plus accrued but unpaid interest to
the date of payment for such repurchase; provided such tender is made at
any time on or after January 1, 1999 with respect to the 2010 Bonds and
January 1, 2000 with respect to the 2015 Bonds. Such tenders will be
accepted by the Trustee on a first-come, first-served basis. The Issuer
shall only be obligated to honor tenders in any one calendar year up to a
total principal amount equal to ten percent (10%) of the Original Aggregate
Outstanding Principal Amount, commencing with calendar 1999 with respect to
the 2010 Bonds and 2000 with respect to the 2015 Bonds. All tenders
received by the Trustee on the same Business Day shall be deemed to have
been received simultaneously. In the event that tenders are received on a
Business Day which, when added to all prior tenders exceed the obligation
of the Issuer to honor such tenders, the Trustee shall notify the Issuer of
the amount of such tenders. The Issuer shall have fifteen (15) days
following such notice to either (i) agree in writing to honor all such
tenders or (ii) advise the Trustee to pro-rate such tenders. If the Issuer
shall not make an election in writing within the period provided, the
Trustee shall pro-rate such tenders.
(b) The Trustee shall give notice to the Issuer of all tenders for
repurchase within five (5) Business Days after the Trustee's receipt
thereof. Provided that the Issuer shall not have previously repurchased the
maximum principal amount of Bonds provided for by subsection (a) hereof,
the Issuer shall have forty-five (45) days to deposit with the Trustee the
outstanding principal amount of the Bond, Bonds or part of a Bond tendered
for repurchase plus accrued but unpaid interest through and including the
date of such deposit, at which time the Issuer's obligation to pay, and the
Bondholder's right to receive, interest on such principal amount shall
cease, provided that the Issuer shall have deposited the amount due within
such forty-five (45) day period. Failure of the Issuer to make such deposit
within the time permitted shall be an Event of Default under Article XIV
hereof.
(c) In the event that the Trustee is required to pro-rate excess Bonds
tendered for repurchase, such pro-ration shall be performed as set forth in
Section 8.02; and notice of pro-ration shall be given to the tendering
Holders pursuant to Section 8.04.
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(d) After the Issuer has deposited sufficient funds with the Trustee
to repurchase the maximum amount of Bonds which it shall be obligated to
repurchase hereunder, the Issuer shall not have any obligation or liability
to any Holder purporting to tender Bonds for its refusal to repurchase any
such Bonds.
Section 8.07. Release of Collateral Following Redemption.
Upon completion of any Redemption of Bonds pursuant to this Article VIII,
the Issuer may deliver to the Trustee an Issuer Order directing the Trustee to
sell so much of the Collateral as would equal, at the maturity of the instrument
or instruments constituting the Collateral, the principal amount of the Bonds so
redeemed. By way of example only, if the Issuer has redeemed one million dollars
($1,000,000) principal amount of Bonds and the Holders have been paid the full
Redemption Price plus interest, then the Issuer may direct the Trustee to sell
zero-coupon treasury securities having a maturity face amount of one million
dollars ($1,000,000). Upon sale of such securities, the net proceeds thereof
shall be payable to the Issuer. In the event that the zero-coupon treasury
securities constituting the Collateral cannot be segregated to match the
principal amount of Bonds redeemed, then the Trustee shall sell so many of such
securities as it may, such that the maturity face amount of the securities
remaining as part of the Collateral is greater than the Aggregate Outstanding
Principal Amount of the Bonds.
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ARTICLE IX
CONVERSION INTO COMMON STOCK
Section 9.01. Right to Convert.
Subject to and upon compliance with the provisions of the Indenture, a
Holder shall have the right, at such Holder's option, at any time or from time
to time prior to the date his Bond is redeemed or paid upon Maturity, to convert
some or all of the principal amount of his Bond or Bonds into that number of
shares of Common Stock as is determined by reference to the following table,
subject to adjustment pursuant to the further provisions of the Indenture
("Conversion").
The Bonds will be convertible until Maturity at one hundred percent (100%)
of their principal amount (accrued interest will be paid separately) into Common
Stock of the Issuer at the rate of $5.00 per share of Common Stock with respect
to the 2010 Bonds and $8.00 per share of Common Stock with respect to the 2015
Bonds (the "Conversion Rate").
Section 9.02. Exercise of Conversion Privilege.
In order to exercise the Conversion privilege, the Holder shall surrender
the Bond, Bonds or portion thereof to be converted to the Trustee at the
Corporate Trust Office of the Trustee, with the Conversion Notice on the reverse
of the Bond certificate fully completed. Bonds shall be convertible in principal
amounts of one thousand dollars ($1,000) or more, unless the remaining principal
balance of such Bonds shall be less than such sum, in which event such Bond must
be converted in its entirety. As soon as practicable after the receipt of such
documents, the Trustee shall request the Issuer to deliver at said offices to
the Holder, or on his written order, to a third party, a certificate or
certificates for the number of full shares of Conversion Stock issuable upon the
Conversion of the Bonds or portion thereof. The Issuer shall not issue
fractional interests in shares of its Common Stock upon Conversion of the Bonds
and shall settle such interests in accordance with Section 9.03. Such Conversion
shall be deemed to have been effected immediately prior to the close of business
on the date on which the documents deliverable upon Conversion of the Bonds are
received by the Trustee. At such time the rights of the Holder as such Holder
shall cease and the person or persons in whose name or names any certificate or
certificates for shares of Conversion Stock shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of the
shares of Conversion Stock represented thereby.
9.03. Adjustment for Fractional Shares.
No fractional shares of Conversion Stock or scrip shall be issued upon
conversion of the Bonds. Any fractional shares of Conversion Stock less than
one-half (1/2) shall be disregarded, and fractional interests of one-half (1/2)
or more of a share of Conversion Stock shall be rounded up to a full share.
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9.04. Adjustment of Conversion Rate and the Conversion Stock.
(a) The initial Conversion Rate and the number of shares of reserved
Conversion Stock shall be based upon Twelve Million (12,000,000) shares of
Common Stock currently outstanding and shall be subject to adjustment from
time to time as follows:
(i) If the number of shares of Common Stock outstanding at any
time after the Date of Execution is increased by a stock dividend or
other distribution of securities to the Issuer's stockholders for
consideration per share less than the Company's book value per share
determined as of the Company's most recent audited balance sheet or
without consideration (other than a distribution of rights to purchase
securities for cash) payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, immediately
following the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend, said other
distribution, subdivision or split-up, the number of shares of
Conversion Stock issuable upon Conversion of the Bonds and the
Conversion Rate shall be appropriately adjusted so that the number of
shares of Common Stock issuable on Conversion of the Bonds shall be
increased and the Conversion Rate decreased in proportion to such
increase of outstanding shares.
(ii) If the number of shares of Common Stock outstanding at any
time after the Date of Execution is decreased by a combination of the
outstanding shares of Common Stock, then, immediately following the
record date for such combination, the number of shares of Conversion
Stock issuable upon Conversion of the Bonds and the Conversion Rate
shall be appropriately adjusted so that the number of shares of Common
Stock issuable on Conversion of the Bonds shall be decreased and the
Conversion Rate shall be increased in proportion to such decrease in
outstanding shares.
(iii) If any consolidation or merger of the Issuer with or into
another entity, or the sale of all or substantially all of its assets
to another entity shall be effected, or in case of any capital
reorganization or reclassification of the capital stock of the Issuer,
then, as a condition of such consolidation, merger or sale,
reorganization or reclassification of the capital stock of the Issuer,
lawful and adequate provision shall be made whereby the Holder shall
thereafter have the right to receive upon the basis and upon the terms
and conditions specified herein and in lieu of the shares of Common
Stock of the Issuer immediately theretofore receivable upon the
conversion of the Bonds, such shares of stock, or of securities,
interest or assets (other than cash) as may be issued or payable with
respect to or in exchange for a number of outstanding shares of Common
Stock equal to the number of shares of Common Stock immediately
theretofore so receivable by the Holder had such consolidation,
merger, sale, reorganization or reclassification not taken place, and
in any such case appropriate provision shall be made with respect to
the rights and interests of the Holder to the end that the provisions
hereof (including without limitation provisions for adjustment of the
Conversion Rate) shall thereafter be applicable, as nearly as may be
in relation to any shares of stock, securities, interests or assets
thereafter deliverable upon the exercise of such Conversion rights.
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(iv) Any and all shares of Conversion Stock issued pursuant to a
Conversion of the Bonds shall (unless covered by an effective public
registration statement) bear a legend reflecting that such shares of
Conversion Stock have not been registered under the Securities Act, or
under any state securities law, and cannot be transferred by sale,
pledge or otherwise, except in compliance with such securities laws
and all regulations thereunder. As a condition to the issuance of
Conversion Stock, the Holder requesting to so convert the Bonds shall
execute appropriate investment letters and other documents as may be
reasonably required by the Issuer and its counsel to assure that the
shares of Conversion Stock are issued only in compliance with
applicable securities laws.
(v) Upon any adjustment of the Conversion Rate, the Issuer
covenants to duly reserve such additional number of shares of Common
Stock as may be necessary to fulfill its obligations hereunder, and to
take such further actions as may be required in order to fulfill its
obligations pursuant to this Article IX.
(b) Except under the circumstances set forth in paragraph (a) above,
there shall be no adjustment in the Conversion Rate or the Conversion Stock
or other property receivable by the Holder upon any Conversion.
(c) Upon the occurrence of any event described in paragraph (a) above,
the Issuer shall furnish the Trustee with an Officers' Certificate
describing the event and its effect on the Conversion Rate and the
Conversion Stock, and the Trustee shall mail a copy of such Certificate to
each Holder within fifteen (15) Business Days after its receipt of such
Certificate. The Trustee shall have no responsibility for preparing or the
accuracy or completeness of such Certificate.
ARTICLE X
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge of Indenture.
Whenever the following conditions shall have been satisfied:
(a) either
(i) all Bonds theretofore authenticated and delivered (other than
(A) Bonds which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07, and (B) Bonds which
have been redeemed or for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Issuer or discharged
from such trust as provided in Section 10.02) have been delivered to
the Trustee for cancellation; or
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(ii) all Bonds not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at Stated Maturity of the
final installment of the principal thereof within one year, and
the Issuer, in the case of clauses (A) or (B) hereinabove, has
deposited or caused to be deposited with the Trustee, in trust
for such purpose, an amount sufficient to pay and discharge the
entire indebtedness on such Bonds not theretofore delivered to
the Trustee for cancellation, for principal and interest to the
date of such deposit (in the case of Bonds which have become due
and payable) or to their Stated Maturity;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for the satisfaction and discharge of this Indenture with respect
to the Bonds have been complied with; then, this Indenture and the lien,
rights and interests created hereby and thereby shall cease to be of
further effect and the Trustee and each co-trustee and separate trustee, if
any, then acting as such hereunder shall, at the expense of the Issuer,
execute and deliver all such instruments as may be necessary to acknowledge
the satisfaction and discharge of this Indenture and shall pay or assign or
transfer and deliver, to the Issuer or upon the demand of the Issuer all
cash, securities and other property held by it as part of the Trust Estate,
including the Collateral, remaining after satisfaction of the conditions
set forth in clauses (i) and (ii) hereinabove.
(d) Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Issuer to the Trustee under Section 13.07, the
obligations of the Trustee to the Issuer and the Holders under Sections
10.02 and 13.15 shall survive, and this Indenture shall cease to be of
further effect with respect to the Bonds except as to (i) rights of
registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Bonds, (iii) the rights of Bondholders to receive
payments of principal thereof and interest thereon, (iv) the rights,
obligations and immunities of the Trustee hereunder, and (v) the rights of
Bondholders as beneficiaries hereof with respect to the property so
deposited with the Trustee and payable to all or any of them.
Section 10.02. Application of Trust Money.
(a) Any money deposited with the Trustee pursuant to this Indenture
shall be held in trust and applied by it, in accordance with the provisions
of the Bonds and this Indenture, to the payment, either directly or through
any paying agent, as the Trustee may determine, to the Persons entitled
thereto, of the principal, and interest for whose payment such money, has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required herein or required by law.
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(b) Any money deposited with the Trustee or any paying agent in trust
for the payment of the principal of or interest on any Bond and remaining
unclaimed for one (1) year after such principal or interest has become due
and payable shall be paid to the Issuer; and the Holder of such Bond shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such paying agent with
respect to such trust money (but only to the extent of the amounts so paid
to the Issuer), shall thereupon cease; provided, however, that (i) no such
release of payment shall be made unless the Trustee or such paying agent,
before being required to make any such release of payment, may at the
expense of the Issuer cause to be published once, in the Wall Street
Journal notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the
date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
ARTICLE XI
GENERAL COVENANTS
Section 11.01. Payment of Principal, Redemption Price and Interest.
The Issuer covenants that it shall promptly pay or cause to be paid (a) the
principal of, Redemption Price for, and interest on the Bonds at the place, on
the dates and in the manner provided herein and in the Bonds; (b) the Trustee's
fees and expenses set forth in Section 13.07 hereof and (c) the other fees and
expenses provided herein.
Section 11.02. Performance of Covenants by Issuer; Due Execution.
Subject to the provisions of Section 11.01 hereof, the Issuer covenants
that it shall faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, in any
and every Bond executed, authenticated and delivered hereunder and in all of its
Proceedings pertaining hereto.
Section 11.03. Protection of Trust Estate.
(a) The Issuer shall cause initially to be filed and will from time to
time execute and deliver all such supplements and amendments hereto and all
such financing statements, continuation statements, instruments of further
assurance, and other instruments, and will take such other action as may be
necessary or advisable to:
(i) maintain or preserve the lien of this Indenture or carry out
more effectively the purposes hereof,
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(ii) perfect, publish notice of, or protect the validity of, any
grant made to or made by this Indenture,
(iii) enforce any of the provisions of this Indenture or the
Bonds; and
(iv) preserve and defend title to the Trust Estate and the
Collateral and the rights of the Trustee, and of the Holders secured
thereby, against the claims of all persons and parties.
(b) The Issuer hereby designates the Trustee its agent and
attorney-in-fact to execute, upon the Issuer's failure to do so, any
financing statement, continuation statement or other instrument that is
permitted pursuant to this Section 11.03; provided, however, that such
designation shall not be deemed to create a duty in the Trustee to monitor
the compliance of the Issuer with the foregoing covenants and provided,
further, that the duty of the Trustee to execute any instrument required
pursuant to this Section 11.03 shall arise only if a Responsible Officer
has received written notice of any failure of the Issuer to comply with the
provisions of this Section 11.03.
Section 11.04. No Disposition of Trust Estate.
Except as permitted by this Indenture, the Issuer shall not sell, assign,
or otherwise encumber or dispose of its interest in the Trust Estate, and will
promptly pay or cause to be discharged, or make adequate provision in the
judgment of the Trustee to discharge, any lien or charge on any part thereof not
permitted hereby.
Section 11.05. Access to Books and Reports; Filing of Notices and Reports.
All books and other records in the possession of the Issuer relating to the
Collateral and the Trust Estate shall at all reasonable times be open to
inspection by such accountants or other agents as the Trustee from time to time
may designate, to the extent lawful.
Section 11.06. Annual Statement as to Compliance.
The Issuer covenants that on or before one hundred twenty (120) days after
the end of the first fiscal year of the Issuer which ends more than three (3)
months after the Closing Date, and each fiscal year thereafter, the Issuer shall
deliver to the Trustee a written statement signed by an Authorized Officer of
the Issuer, stating, as to each signer thereof, that
(a) a review of the fulfillment by the Issuer during such year of its
obligations under this Indenture has been made under such officer's
supervision; and
(b) the Issuer has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a Default in the fulfillment of
any such obligation, specifying each such Default known to such officer and
the nature and status thereof.
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Section 11.07. No Borrowing Against Trust Estate.
The Issuer shall not incur or assume any indebtedness, or guarantee any
indebtedness of any Person, secured by any portion of the Trust Estate or the
Collateral, except for such indebtedness as may be incurred by the Issuer in
connection with the issuance of the Bonds pursuant to this Indenture unless such
subsequent obligation shall be expressly subordinated to the rights of the
Trustee and the Holders to the Trust Estate and the proceeds thereof.
Section 11.08. Corporate Existence.
So long as the Bonds are outstanding and the Issuer has not been released
from liability thereon, it shall maintain its corporate existence and will not
take any action which would cause it not to continue in good standing and remain
qualified to do business under applicable laws of the United States and any
applicable state law, and that it will not dissolve or otherwise dispose of all
or substantially all of its assets, and shall not voluntarily consolidate with
or merge into any other entity unless such surviving entity shall expressly
agree to be bound by the terms of this Indenture.
Section 11.09. Taxes.
Subject to its right to lawfully contest any such imposition, the Issuer
shall pay all taxes when due and payable or levied against its assets,
properties or income, including the Collateral.
Section 11.10. Absolute Obligation.
(a) The obligations of the Issuer hereunder shall be irrevocable and
unconditional. This Indenture may not be altered, amended, revoked or
terminated, notwithstanding any event, foreseen or unforeseen, as more
fully set forth below, except as may be approved in writing by the Trustee
in accordance with Article XV. The Issuer recognizes that the initial
purchasers of the Bonds, and each subsequent Holder thereof, have relied,
and are and will be relying, on the obligations of the Issuer hereunder as
security for the prompt payment of the principal of, Redemption Price for,
and interest on the Bonds.
(b) The Issuer shall not be entitled to any abatement, diminution,
setoff, abrogation, waiver or modification of its obligations hereunder or
under the Bonds nor to any termination of this Indenture by any reason
whatsoever except as expressly provided herein regardless of any rights of
set-off, recoupment or counterclaim that the Issuer may otherwise have
against any Holder or any other party or parties and regardless of any
contingency, act of God, event or cause whatsoever notwithstanding any
circumstance or occurrence that may arise or take place before, during or
after execution of this Indenture and the authentication of the Bonds
including, without limiting the generality of the foregoing, any lack of
validity or enforceability of the Bonds or any other document executed and
delivered in connection with the transactions contemplated hereby, any
statement, instrument or other document presented under this Indenture
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being proved to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being proven to be untrue or inaccurate in
any respect whatsoever, the failure by the Trustee to enforce this
Indenture on a timely basis, or any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
Section 11.11. Insurance.
The Issuer shall maintain, with insurance companies of recognized standing,
insurance against such risks and in such amounts as are customarily insured by
persons engaged in similar businesses.
ARTICLE XII
ISSUER REPRESENTATIONS AND WARRANTIES
Section 12.01. Representations and Warranties.
(a) In addition to the representations and warranties contained
elsewhere in this Indenture and in any certificate delivered by the Issuer
pursuant to this Indenture (all statements made therein being deemed
representations and warranties for purposes hereof) , the Issuer represents
and warrants to, and covenants with, the Trustee and the Holders, as their
respective interests may appear, that:
(i) It is duly organized and existing as a corporation under the
laws of the State of New York and is qualified to do business and in
good standing in every jurisdiction in which the nature of its
activities, including without limitation issuance of the Bonds and the
execution, delivery and performance of this Indenture requires such
qualification;
(ii) It has the corporate power to execute, deliver and perform
and enter into the transactions contemplated by this Indenture and the
Bonds, and has duly authorized its execution, delivery and performance
of, and the transactions contemplated by, this Indenture, the Bonds
and the other documents to which it is a party pursuant to the
foregoing;
(iii) The Indenture and the Bonds each constitute a legal, valid
and binding obligation of the Issuer enforceable against Issuer in
accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) Neither the execution and delivery by it of, nor the
performance by it of its obligations under, this Indenture, the Bonds,
or the other documents to which it is a party pursuant thereto, the
consummation of the transactions contemplated hereby or thereby nor
the fulfillment of or compliance with the terms and conditions of this
Indenture, the Bonds or the other documents to which it is a party
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pursuant thereto, conflict with or result in a breach of any of the
terms, conditions or provisions of its Certificate of Incorporation or
bylaws, any legal restriction, rule, statute or regulation or any
agreement or instrument to which it is now a party or by which it or
any of its property is bound, or constitutes at default under any of
the foregoing;
(v) The Board Resolution authorizing the execution, delivery and
performance of this Indenture, the Bond Purchase Agreement and all
other documents to which it is a party pursuant thereto, the issuance
and sale of the Bonds and the grant of the Collateral to the Trustee
is in full force and effect and has not been amended or altered, and
the Issuer has taken all of the necessary action on its part to carry
out the transactions contemplated by this Indenture, the Bonds and the
other documents to which it is a party pursuant thereto;
(vi) To the best of Issuer's knowledge, all approvals, consents
and orders of any governmental authority having jurisdiction over it,
or which would constitute a condition precedent to the performance by
the Issuer of its obligations hereunder or under the Bonds or the
other documents to which it is a party pursuant thereto, have been
obtained or given and are in effect, and the Issuer and its operations
are in compliance with all federal or state statutes and regulations
applicable to the transactions contemplated by this Indenture, the
Bonds and the other documents to which it is a party pursuant thereto,
a violation of which would or could materially and adversely affect
its ability to carry out its obligations hereunder and under the
Bonds;
(vii) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public
board or body pending or, to the Issuer's best knowledge, threatened
against or affecting the Issuer (or, to the Issuer's best knowledge,
any basis therefor) wherein an unfavorable decision, ruling or finding
would materially adversely affect the existence or operations of the
Issuer, the validity or enforceability of this Indenture, the Bonds,
the grant of Collateral to the Trustee or the obligations of the
Issuer thereunder or hereunder, or under any agreement or instrument
to which the Issuer is a party and which is used or contemplated for
use in the consummation of the transactions contemplated hereunder or
under the Bonds, would adversely affect the proceedings of the Issuer
in connection herewith or therewith or would or could materially and
adversely affect the Issuer's ability to carry out its obligations
hereunder and thereunder; and
(viii) The Conversion Shares have been duly reserved for issuance
upon Conversion, and upon Conversion in accordance with Article IX
hereof, such Conversion Shares shall be duly authorized, full paid and
non-assessable.
(b) The representations and warranties set forth in this Section 12.01
and elsewhere in this Indenture or in any certificate delivered pursuant
hereto shall be deemed given as of the Closing Date and shall survive
delivery of the Bonds.
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(c) If any representation contained in this Indenture shall prove to be
untrue or incorrect in any material respect, and if the Trustee has notice of
its falsity or inaccuracy in accordance with Section 13.02 hereof, the Trustee
shall give written notice thereof to the Issuer and the Issuer shall have thirty
(30) days in which to correct such Default; and if such correction is made in
accordance with this section, no Event of Default shall occur as a result.
ARTICLE XIII
THE TRUSTEE
Section 13.01. Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default,
undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture. If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default of which the
Trustee receives notice under Section 13.02:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture, and no others and no implied
covenants or obligations of the Trustee shall be read into this
Indenture.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. The Trustee shall, however, examine such
certificates and opinions to determine whether they conform to the
requirements of this Indenture but need not verify the accuracy of the
contents thereof or whether the procedures specified by or pursuant to
the provisions of this Indenture have been followed in the preparation
thereof.
(c) Subject to 13.01(a), the Trustee may not be relieved from
liability for its own gross negligent action, its own gross negligent
failure to act, or its own willful misconduct or bad faith, except that:
(i) This paragraph does not limit the effect of these subsections
(b) and (c) (ii) hereof.
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(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was grossly negligent in ascertaining the pertinent facts
or acted in bad faith.
(d) Except with respect to Sections 13.01 and 13.02, which shall not
be limited by this Section 13.01(d), for all other purposes under this
Indenture, the Trustee shall not be deemed to have notice of any Event of
Default described in Section 14.01(c) or 14.01(d) or any Default described
in Section 14.01(e) unless a Responsible Officer assigned to and working in
the Trustee's Corporate Trust Office has actual knowledge thereof or unless
written notice from the Issuer or any Holder of any event which is in fact
such an Event of Default is received by the Trustee at the Corporate Trust
Office, and such notice references the Bonds generally, the Issuer, any
Trust Estate or this Indenture and specifies the nature of the Event of
Default.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; provided, however, that the
Trustee shall not refuse or fail to perform any of its duties hereunder
solely as a result of nonpayment of its normal fees and expenses and
further provided that nothing in this Section 13.01(e) shall be construed
to limit the exercise by the Trustee of any right or remedy permitted under
this Indenture or otherwise in the event of the Issuer's failure to pay the
Trustee's fees and expenses pursuant to Section 13.07. In determining that
such repayment or indemnity is not reasonably assured to it, the Trustee
must consider not only the likelihood of repayment or indemnity by or on
behalf of the Issuer but also the likelihood of repayment or indemnity from
amounts payable to it from the applicable Trust Estate pursuant to Sections
7.01 and 13.07.
(f) Notwithstanding any extinguishment of all right, title and
interest of the Issuer in and to the Trust Estate following a Default and a
consequent declaration of acceleration of the Maturity of the Bonds,
whether such extinguishment occurs through a sale of the Trust Estate to
another Person, the acquisition of the Trust Estate by the Trustee or
otherwise, the rights, powers and duties of the Trustee with respect to the
Trust Estate (or the proceeds thereof) and the Holders of the Bonds and the
rights of the Bondholders shall continue to be governed by the terms of
this Indenture.
Section 13.02. Notice of Default.
(a) Notwithstanding anything herein to the contrary, the Trustee shall
not be required to take notice, or be deemed to have notice, of any Default
or Event of Default hereunder except for Events of Default described in
Sections 14.01(a) and (b) unless a Responsible Officer of the Trustee shall
be notified in writing of the Default or Event of Default, specifying the
nature of the Default or Event of Default, by the Issuer or any Holder, or
by a judicial order delivered to the Responsible Officer of the Trustee or
unless a Responsible Officer of the Trustee shall have actual knowledge of
any Default or Event of Default.
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(b) Within ten (10) Business Days after receipt of notice of any Event
of Default hereunder, the Trustee shall transmit by registered class mail
to the Issuer and all Holders of Bonds, as their names and addresses appear
on the Bond Register, a notice of such Event of Default hereunder known to
the Trustee, unless the Trustee has been notified in writing by an Opinion
of Counsel that such Default or Event of Default shall have been cured or
waived by the date such notice is to be mailed. The Trustee shall have no
obligation to verify the factual basis underlying such Opinion of Counsel
and may conclusively rely upon such Opinion of Counsel.
Section 13.03. Rights of Trustee.
Except as otherwise provided in Section 13.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) The Trustee may consult with counsel with respect to legal matters
or questions of law arising hereunder and the written advice of such
counsel or any Opinion of Counsel with respect to such legal matters or
questions of law shall be full and complete authorization and protection in
respect to any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon and all reasonable fees and expenses
associated with such representation shall be paid for by the Issuer;
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Bondholders, pursuant to this Indenture, unless such
Bondholders shall have offered to the Trustee reasonable security and/or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may determine necessary, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or
attorney;
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(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through, and may
consult with as necessary to carry out its obligations hereunder, agents or
attorneys including Counsel to the Trustee, certified public accountants
and recognized authorities in their fields (who are not employees of the
Trustee) and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such persons appointed with due care by it
hereunder;
(h) The Trustee shall not be required to give any bond or surety in
respect of the execution of the said trusts and powers or otherwise in
respect to the premises; and
(i) Notwithstanding anything elsewhere in this Indenture with respect
to the authentication of any Bonds, the withdrawal of any cash, the release
of any property or any action whatsoever within the purview of this
Indenture, the Trustee shall have the right, but shall not be required, to
demand any showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof, in addition to that
by the terms hereof required as a condition of such action, deemed
desirable by the Trustee for the purpose of establishing the right of the
Issuer to the authentication of any Bonds, the withdrawal of any cash or
the taking of any other action by the Trustee.
Section 13.04. Not Responsible for Recitals or Issuance of Bonds.
The recitals contained herein and in the Bonds, except the certificates of
authentication on the Bonds, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for their correctness or the accuracy or
the completeness of any of the information contained therein. The Trustee makes
no representations with respect to any Trust Estate or as to the validity or
sufficiency of the Trust Estate, this Indenture or of the Bonds. The Trustee
shall not be accountable for the use or application by the Issuer of Bonds or
the proceeds thereof or any money paid to the Issuer pursuant to the provisions
hereof.
Section 13.05. May Hold Bonds.
The Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Bonds and, subject to Sections
13.08, 13.09 and 13.13, may otherwise deal with the Issuer or any Affiliate of
the Issuer with the same rights it would have if it were not Trustee or such
other agent. The Trustee and officers and agents of the Trustee also may engage
in or be interested in any financial or other transaction with the Issuer;
provided, however, that if the Trustee determines, in its sole discretion, that
any such relationship is in conflict with its duties under this Indenture, it
shall eliminate the conflict or resign as Trustee.
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Section 13.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by this Indenture or by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Issuer.
Section 13.07. Compensation and Reimbursement.
(a) The Issuer agrees as follows:
(i) subject to any separate written agreement with the Trustee,
to pay the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its gross negligence, willful misconduct, or
bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without gross
negligence, willful misconduct, or bad faith on the Trustee's part,
arising out of, or in connection with, the acceptance or
administration of this trust, including the costs and expenses of
defending itself (including reasonable legal fees) against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder, provided that with respect to any such
claim, the Trustee shall have given the Issuer written notice thereof
as promptly as practical after the Trustee shall have written
knowledge thereof.
The obligations of the Issuer under this Section 13.07 (a) shall survive the
termination of the Trust and the resignation or removal of the Trustee.
(b) As security for the performance of the obligations of the Issuer
under this Section 13.07, the Trustee shall have a priority lien to the
lien of the Bondholders with respect to which any claim of the Trustee
under this Section 13.07 arose upon all property and funds held or
collected as part of the Trust Estate by the Trustee in its capacity as
such.
(c) Except in the event of non-payment of principal and any interest
due on the Bonds, the Trustee agrees that it shall not take any action to
cause the Issuer to be declared insolvent or to have a receiver of the
Issuer appointed by reason of the nonpayment of the fees and expenses of
the Trustee until the later of (i) ninety-one (91) days after the payment
in full of all Bonds issued under this Indenture and (ii) one (1) day plus
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the number of days in the longest applicable avoidable preference period,
if any, under the laws of the State of New York after the payment in full
of all the Bonds issued under this Indenture.
Section 13.08. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state or of the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least one million dollars ($1,000,000), subject to supervision or
examination by Federal or State authority and having an office within the United
States of America. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 13.08, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 13.08, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article XIII.
Section 13.09. Disqualification; Conflicting Interest.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section 13.09, it shall, within ninety (90) days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect
hereinafter specified in this Article XIII.
(b) In the event that the Trustee shall fail to comply with the
provisions of Section 13.09 (a) , the Trustee shall, within ten (10) days
after the expiration of such ninety (90) day period, transmit by registered
mail to all Bondholders, as their names and addresses appear on the Bond
Register, notice of such failure.
(c) For the purpose of this Section 13.09, the Trustee shall be deemed
to have a conflicting interest if:
(i) the Trustee or any of its directors or executive officers is
an obligor upon the Bonds or an underwriter for the Issuer;
(ii) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under the direct or indirect common
control with the Issuer or an underwriter for the Issuer; or
(iii) any director, officer or employee of the Trustee is also a
director, officer or employee of the Issuer or any Affiliate of the
Issuer.
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Section 13.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article XIII shall become effective
until the acceptance of appointment by the successor Trustee under Section
13.11 and acceptance by such successor Trustee of the rights of the Trustee
under this Indenture.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within thirty (30)
days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by act of the Issuer or Act
of the Bondholders representing more than fifty percent (50%) of the then
Aggregate Outstanding Principal Amount of the Bonds, delivered to the
Trustee and to the Issuer.
(d) If at any time:
(i) the Trustee shall have a conflicting interest prohibited by
Section 13.09 and shall fail to resign or eliminate such conflicting
interest in accordance with Section 13.09 after written request
therefor by the Issuer or by any Bondholder;
(ii) the Trustee shall cease to be eligible under Section 13.08;
or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, (a) the Issuer by an Issuer Order may remove the Trustee,
or (b) subject to Section 14.17, any Bondholder who has been a bona
fide Holder of a Bond for at least six (6) months (or since the
Closing Date) may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any
cause, the Issuer by an Issuer Order shall promptly appoint a successor
Trustee. If within one year after such resignation, removal or incapacity
or the occurrence of such vacancy the Issuer shall not have appointed a
successor Trustee, such Trustee shall be appointed by Act of the
Bondholders of Bonds representing more than fifty percent (50%) of the
Aggregate Outstanding Principal Amount of the Bonds delivered to the Issuer
and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor
Trustee and supersede any successor Trustee appointed by the Issuer. If no
successor Trustee shall have been so appointed by the Issuer or Bondholders
and shall have accepted appointment in the manner hereinafter provided, any
Bondholder who has been a bona fide Holder of a Bond for at least six (6)
months (or since the Closing Date) may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(f) The Issuer shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders
as their names and addresses appear on the Bond Register. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
(g) Any successor Trustee must be approved by the Issuer.
(h) Upon the resignation and removal of the Trustee, the Issuer shall
discharge the Trustee and release the Trustee from all claims and
liabilities incurred by the Trustee subject to the limitations set forth in
Section 13.07(a)(iii).
Section 13.11. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer and the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee.
Notwithstanding the foregoing, on request of the Issuer or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder subject nevertheless to its lien, if
any, for compensation and reimbursement provided for in Section 13.07. Upon
request of any such successor Trustee, the Issuer shall execute and deliver
any and all instruments for more fully vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
(b) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article XIII.
Section 13.12. Merger, Consolidation or Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee (including an
express assumption of the obligations of the Trustee under this Indenture),
shall be the successor of the Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article XIII, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Bonds have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Bonds so
40
authenticated with the same effect as if such successor Trustee had
authenticated such Bonds. Upon request of any such successor Trustee, the Issuer
shall execute and deliver any and all instruments for more fully vesting in and
confirming to such successor Trustee all such rights, powers and trust.
Section 13.13. Right of Trustee To Pay Taxes and Other Charges.
In case any tax, assessment, governmental or other charge upon any part of
the Collateral is not paid as required herein, the Trustee may pay such tax,
assessment, governmental or other charge, without prejudice, however, to any
rights of the Trustee or the Holders arising in consequence of such failure; and
any amount at any time so paid under this Section 13.13, with interest thereon
from the date of payment at the rate determined by the Trustee, shall become so
much additional indebtedness secured by this Indenture, and the same shall be
given a preference in payment over any of the Bonds, and shall be paid out of
the proceeds or revenues collected from the Collateral, if not otherwise caused
to be paid; but the Trustee shall not be under any obligation to make any such
payment unless it shall have been requested to do so by the Holders of at least
twenty-five percent (25%) of the then Aggregate Outstanding Principal Amount of
the Bonds and shall have been provided with adequate funds for the purpose of
such payment.
Section 13.14. Co-Trustees and Separate Trustees.
(a) It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction (including particularly the law of
the State of New York) denying or restricting the right of banking
corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this
Indenture, and in particular in case of the enforcement thereof on the
occurrence of a Default or Event of Default, or in case the Trustee deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the powers, rights or remedies herein or therein granted to
the Trustee or hold title to the properties, in trust, as herein Granted,
or take any other action which may be desirable or necessary in connection
therewith, the Trustee may appoint, with notice to the Bondholders, an
additional individual or institution as a separate or Co-Trustee, in which
event each and every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this
Indenture to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate or
Co-Trustee, and every covenant and obligation necessary to the exercise
thereof by such separate or Co-Trustee shall run to and be enforceable by
either of them.
(b) Should any deed, conveyance or instrument in writing from the
Issuer be required by the separate or Co-Trustee so appointed by the
Trustee for more fully and certainly vesting in and confirming to him or it
such properties, rights, powers, trusts, duties and obligations, any and
all such deeds, conveyances and instruments in writing shall, on request,
be executed, acknowledged and delivered by the Issuer. In case any separate
or Co-Trustee, or a successor to either, shall die, become incapable of
acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of such separate or Co-Trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new Co-Trustee or successor to such separate or
Co-Trustee. Any Co-Trustee previously appointed by the Trustee pursuant to
41
this Section 13.14 may be removed by the Trustee, or by the Bondholders to
the same extent they may remove the Trustee pursuant to Section 13.10, in
which case all powers, rights and remedies vested in the Co-Trustee shall
again vest in the Trustee as if no such appointment of a Co-Trustee had
been made.
Section 13.15. Withholding Taxes.
Whenever it is acting as a paying agent for the Bonds, the Trustee shall
comply with all requirements of the Code, and all regulations thereunder, with
respect to the withholding from any payments made on such Bonds of any
withholding taxes imposed thereon and with respect to any reporting requirements
in connection therewith. Amounts properly withheld under the Code by any Person
from any payment to any Holders of interest and/or principal shall be considered
as having been paid by the Issuer to such Holder for all purposes of this
Indenture.
Section 13.16. Actions of Trustee.
The Trustee shall not take any affirmative actions which will impair the
interests of the Bondholders in the Collateral.
Section 13.17. Construction of Indenture.
The Trustee may construe any of the provisions of this Indenture insofar as
the same may appear to be ambiguous or inconsistent with any other provisions
hereof, and such construction by the Trustee of any such provisions hereof in
good faith shall be binding upon the Issuer and the Holders.
ARTICLE XIV
DEFAULTS AND REMEDIES
Section 14.01. Events of Default.
An "Event of Default," wherever used herein means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) The failure to pay any interest upon a Bond when same becomes due
and payable; and such default or failure shall continue for a period of
thirty (30) days or more; or
(b) The failure to pay any principal of or Redemption Price for a Bond
when the same becomes due and payable; or
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(c) The entry of a decree or order by a court having jurisdiction in
respect of the Issuer adjudging the Issuer a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect to the Federal Bankruptcy Code
or any other, present or future, applicable federal or state now or
hereafter in effect, or appointing a receiver, liquidator, assignee, or
sequestrator (or other similar official) of the Issuer or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree, order or
appointment unstayed and in effect for a period of sixty (60) consecutive
days; or
(d) The commencement by the Issuer of a proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings again it, or the filing by it of a
petition or answer or consent seeking relief under the Federal Bankruptcy
Code or any other similar applicable federal or state law, as now in
effect, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee or sequestrator
(or similar official) of the Issuer or of any substantial part of its
property or the making by it of a general assignment for the benefit of
creditors in connection therewith, or its inability to pay its debts
generally as they become due or the taking of corporate action by the
Issuer in furtherance of any such action; or
(e) The breach or default by the Issuer in the due observance or
performance of any other of its material covenants in this Indenture or the
breach by the Issuer of any material representation or warranty of the
Issuer made in this Indenture or any certificate or other writing delivered
pursuant hereto or in connection herewith with respect to the Bonds which
breach or default shall not have been cured or, in the case of a
misrepresentation or breach of warranty, the circumstance or condition
shall not have been eliminated, within thirty (30) days after written
notice thereof shall have been given, by registered or certified mail, to
the Issuer by the Trustee, or to the Issuer and the Trustee by the Holders
of Bonds representing at least a majority of the Aggregate Outstanding
Principal Amount of the Bonds, unless the Trustee, or the Trustee and the
Bondholders, representing not less than a majority of the Aggregate
Outstanding Principal Amount of Bonds which requested such notice, as the
case may be, shall agree, in writing, to an extension of such period prior
to its expiration; or
(f) The issuance of an order of a court or other body that
invalidates, subordinates or challenges the lien of this Indenture against
the Collateral, which becomes final.
Section 14.02. Actions on Default.
(a) If an Event of Default occurs and is continuing, the Trustee may,
and if directed to do so by the Holders representing more than fifty
percent (50%) of the then Aggregate Outstanding Principal Amount of the
Bonds the Trustee shall, declare the principal amount of all Bonds to be
immediately due and payable, by notice in writing to the Issuer (and to the
Trustee if given by Bondholders representing more than fifty percent (50%)
of the then Aggregate Outstanding Principal Amount of the Bonds) and, upon
any such declaration, such Bonds, in an amount equal to the unpaid
principal amount of such Bonds, together with accrued and unpaid interest
43
thereon, to the date of such acceleration, if any, shall become immediately
due and payable. Such declaration, however, shall not in and of itself
require the Trustee to make any distributions under Section 14.09. In
addition, upon such declaration the Trustee may, and upon direction by the
Holders as provided in Section 14.15 hereof, the Trustee shall, subject to
Section 13.01(a), exercise all other rights granted to it hereunder or such
of those rights as may be specified by the direction of such Bondholders;
provided, however, that nothing herein shall obligate the Trustee to
advance its own funds. All monies received by the Trustee as a result of
actions taken by reason of an Event of Default shall be applied in
accordance with Article VII hereof, except for monies received upon a sale
of the Collateral following a declaration of acceleration of the principal
amount of the Bonds, which money shall be applied as provided in Section
14.09 hereof.
(b) The provisions of the preceding paragraph are subject to the
condition that, at any time after a declaration of acceleration of the
principal amount of the Bonds has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders representing more than
fifty percent (50%) of the then Aggregate Outstanding Principal Amount of
the Bonds, by written notice to the Issuer and the Trustee, may rescind and
annul such declaration and its consequences if:
(i) The Issuer has paid to or caused to be deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all Bonds;
(B) the principal of any Bonds which has become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by such Bonds to the date of payment;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on the Bonds at
the rate borne by such Bonds to the date of payment; and,
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, fees, expenses, disbursements and
advances of the Trustee, its agents and counsel.
(ii) All Defaults and Events of Default then continuing, other
than the nonpayment of the principal of the Bonds which have become
due solely by such acceleration, have been cured or waived as provided
in Section 14.16.
(c) No such rescission and amendment shall extend to or affect any
subsequent Event of Default or impair any right or remedy consequent
thereon.
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Section 14.03. Suits for Enforcement by Trustee.
Upon the occurrence and continuance of any Event of Default, then and in
every such case the Trustee may, subject to the provisions of Section 14.15
hereof, in its discretion, proceed to protect and enforce its rights and the
rights of the Bondholders by such appropriate Proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power Granted herein or therein, or to enforce any other
proper remedy.
Section 14.04. Other Remedies; Limitation on Remedies; Sale of Collateral.
(a) Subject to Sections 14.04(b), 14.06 and 14.15, if an Event of
Default shall have occurred and be continuing in respect to the Bonds and
the Bonds have been declared due and payable and such declaration and its
consequences have not been rescinded or annulled, the Trustee, in addition
to those actions permitted and authorized by Section 14.02 and 14.03, may
do one or more of the following:
(i) institute Proceedings for the collection of all amounts then
due and payable on the Bonds under this Indenture, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Trust Estate or Collateral securing the Bonds monies adjudged
due and payable;
(ii) sell the Trust Estate or Collateral securing the Bonds or
any portion thereof or rights or interests therein, at one or more
public or private sales called and conducted in any manner permitted
by law or this Indenture;
(iii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate
or Collateral securing the Bonds;
(iv) by action or suit in equity require the Issuer to account as
if it were the trustee of an express trust for the Bondholders;
(v) by action or suit in equity enjoin any acts which may be
unlawful or in violation of the rights of the Bondholders;
(vi) exercise any remedies it may have as the secured party
hereunder or under the UCC or otherwise and take any other appropriate
action to protect and enforce the rights and remedies of the Trustee
or the Holders of the Bonds; and
(vii) exercise all other rights granted to the Trustee hereunder
or by law.
(b) The power to effect any sale of any portion of the Trust Estate or
Collateral pursuant and subject to this Section 14.04 is also subject to
Section 14.06 and shall not be exhausted by any one or more sales as to any
portion of such Trust Estate remaining unsold, but shall continue
unimpaired until the entire Trust Estate or Collateral shall have been sold
or all amounts payable on the Bonds secured under this Indenture shall have
45
been paid. The Trustee may from time to time postpone any public sale by
public announcement made at the time and place of such sale. The Trustee
hereby expressly waives its right to any amount fixed by law as
compensation for any sale, and shall receive in lieu thereof, the
compensation provided by Article XIII hereof.
(c) To the extent permitted by law, the Trustee shall not in any
private sale sell or otherwise dispose of the Trust Estate, or any portion
thereof, securing the Bonds which have been declared due and payable
following an Event of Default, unless:
(i) the Holders representing more than fifty percent (50%) of the
then Aggregate Outstanding Principal Amount of the Bonds consent to,
or direct the Trustee to make such sale,
(ii) the proceeds of such sale would be not less than the entire
amount which would be distributable to the Holders of the Bonds, in
full payment thereof in accordance with Section 14.09, and be
sufficient to pay the sums due the Trustee hereunder on the Payment
Date next succeeding the date of such sale, or
(iii) the Trustee determines, in its sole discretion, that the
conditions for retention of such Trust Estate set forth in Section
14.06(a)(i) and (iii) cannot be satisfied (in making any such
determination, the Trustee may obtain and rely upon an opinion of an
Independent investment banking firm as provided in Section 14.06(b)),
and the Holders of Bonds representing at least two-thirds (66-2/3%) of
the then Aggregate Outstanding Principal Amount of the Bonds consent
to such sale.
(d) Upon a declaration of acceleration as provided in Section 14.02,
but subject to the provisions of Sections 14.04(b) and 14.06, by notice in
writing to the Issuer, the Trustee may, subject to applicable state and
federal law, sell the Collateral assigned as security hereunder, in whole
or in part, through one or more public or private sales, in such manner as
the Trustee in its sole discretion deems appropriate. The Collateral may be
sold in its entirety, in one transaction, in portions or from time to time
as the Trustee deems appropriate; provided, however, that at such time as
the Trustee receives proceeds from the sale of Collateral, net of all costs
and expenses in connection therewith, in an amount equal to the Aggregate
Outstanding Principal Amount of the Bonds plus accrued interest thereon to
a date sixty (60) days after it has received such proceeds, it need not,
but may, make further sales of the Collateral. Nothing in the preceding
sentence however, shall be construed as limiting or restricting the
Trustee's right to sell the Collateral and/or collect proceeds from such
sales in an amount in excess of such amount. The Trustee shall give the
Issuer twenty (20) days' written notice of any proposed sale or other
disposition of the Collateral, with a copy thereof to be delivered to each
Holder. The Trustee shall use reasonable efforts to complete any sale of
the Collateral in a timely fashion. Proceeds from such sale shall be
applied by the Trustee in accordance with Section 15.09. In addition, the
Trustee is hereby authorized and empowered to execute and deliver on behalf
of the Issuer as its attorney-in-fact, or otherwise, any and all documents
or instruments and to do or accomplish all acts or things that are
necessary or appropriate to effect the sale of the Collateral.
46
(e) The Issuer and the Trustee acknowledge that the Trustee may be
unable to effect a sale to the public of all or any part of the Collateral
by reason of certain prohibitions or restrictions in federal or state laws
and regulations, and therefore may be compelled to resort to one or more
sales to a restricted group of purchasers in a negotiated sale. The Issuer
and the Trustee also acknowledge that a negotiated sale may not provide for
maximum realization on the value of the Collateral. The Issuer agrees that
any sale so made may be at prices and terms less favorable than if the
Collateral were sold to the public. The Issuer agrees that such negotiated
sales, whether for cash or credit, made under the foregoing circumstances
shall not be deemed for that reason to have been made in a commercially
unreasonable manner; provided, however, that the Trustee shall have used
reasonable efforts to obtain the best price from the sale of the Collateral
consistent with the need to provide for prompt payment of the Bonds
following a declaration of acceleration. The Trustee is authorized to
comply with any restriction or limitation as it may be advised by an
Opinion of Counsel to the Trustee is necessary or desirable in order to
avoid any required approval by any government or regulatory board or
officer, and it is agreed that such compliance shall not result in such
sale being considered to have been made in a commercially unreasonable
manner, nor shall the Trustee be liable or accountable to the Issuer or any
Bondholder by reason of the fact that the proceeds obtained at such sale
are less than what might otherwise have been obtained, provided the Trustee
has met the requirements of this Section 14.04.
(f) The Trustee may bid for and acquire any portion of the Collateral
in connection with the public sale thereof and, in lieu of paying cash
therefor, may make settlement for the purchase price by paying the net sale
price, after deducting therefrom the expenses of the sale and of any
Proceedings in connection therewith, into the Trust Estate for application
pursuant to Section 14.09. The Bonds need not be produced in order to
complete any such sale or in order for the net sale price to be credited
against such Bonds. The Trustee may hold, lease, operate, manage or
otherwise deal with any property so acquired in any manner permitted by
law.
(g) All monies received from the sale of Collateral pursuant to this
Article XIV, after payment of all fees and expenses in connection
therewith, shall be deposited by the Trustee in the Debt Service Fund for
application as provided in Section 14.09.
(h) The Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of such Trust Estate in
connection with a sale thereof;
(i) The Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey the Issuer's interest
in any portion of such Trust Estate in connection with a sale thereof, and
to take all action necessary to effect such sale; and
(j) No purchaser or transferee at such a sale shall be bound to
ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent or determine the application of any monies.
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Section 14.05. Other Rights and Remedies.
(a) In addition to its rights and remedies otherwise granted by this
Article XIV following an Event of Default, but subject to Sections 14.04(b)
and 14.06, the Trustee may exercise all rights and remedies available to a
secured party under the UCC and take whatever other action at law or in
equity which appears necessary or desirable to collect the amount then due
and thereafter to become due under this Indenture or the Collateral, to
seek damages, or to enforce performance and observance of any obligation,
agreement or covenant of the Issuer under this Indenture or the Bonds. Such
actions include, but are not limited to, obtaining the appointment of a
receiver, injunction, specific performance and collecting all monies due or
payable with respect to Collateral directly from the Persons obligated for
such payments.
(b) Notwithstanding anything to the contrary in this Article XIV, if
an Event of Default has occurred as a result of an order or judgment
arising out of a Proceeding, which order or judgment prevents the
application by the Trustee of the proceeds of one or more items of
Collateral included in the Trust Estate, as provided in this Indenture, the
Trustee may exercise one or more of the remedies set forth in this Article
XIV solely with respect to such item of such Collateral.
Section 14.06. Optional Preservation of Trust Estate.
(a) If the Bonds have been declared due and payable following an Event
of Default and such acceleration has not been rescinded and annulled, the
Trustee may, in its sole discretion and to the extent permitted by
applicable law, refrain from selling the Trust Estate securing the Bonds
and may apply all distributions and other amounts receivable with respect
to such Trust Estate to the payment of the principal of, premium, if any,
and interest on the Bonds as and when such principal and interest would
have become due pursuant to the terms hereof and of the Bonds if there had
not been an acceleration of the maturity of such Bonds, provided that:
(i) the Trustee shall have determined that the distributions and
other amounts receivable with respect to the Trust Estate are
sufficient to provide the funds required to pay the principal of,
premium, if any, and interest on such Bonds as and when such principal
and interest would have become due pursuant to the terms hereof and of
the Bonds and Trustee fees if there had not been an acceleration of
the maturity of such Bonds;
(ii) the Holders of the Bonds shall not have directed the Trustee
in accordance with Section 14.15 (subject, however, to Section 14.04)
to sell the Trust Estate securing such Bonds;
(iii) the Trustee shall have delivered written notice to the
Issuer that it proposes to retain the Trust Estate in satisfaction of
the Issuer's obligations hereunder and either twenty-one (21) days
shall have elapsed from the date the notice was sent during which the
Issuer shall have failed to object in writing to the Trustee's taking
48
such action or the Issuer shall have delivered to the Trustee an
agreement in writing consenting to the Trustee's taking such action
pursuant to this Section 14.06.
(b) The Trustee may, but need not, obtain and rely upon an opinion of
an Independent investment banking firm of national reputation as to the
feasibility of any action proposed to be taken in accordance with
subsection (a) of this Section 14.06 and as to the sufficiency of the
distributions and other amounts receivable with respect to the Trust Estate
securing the Bonds to make the required payments of principal of, premium,
if any, and interest on the Bonds, which opinion shall be conclusive
evidence as to such feasibility or sufficiency.
(c) Until the conditions of clauses (i) through (iii) of subsection
(a) of this Section 14.06 are satisfied with respect to the Bonds that have
been declared due and payable following an Event of Default or until the
Trustee determines to take the action specified in said subsection (a), all
amounts collected by the Trustee with respect to the Bonds pursuant to this
Article XIV or otherwise shall be applied in accordance with Section
14.06(a) and thereafter shall be applied in accordance with Section 14.09;
provided, however, that if the Trustee shall have acquired the entire Trust
Estate securing the Bonds by purchasing it at any public or private sale
conducted pursuant to Section 14.04, the Trustee may, in its sole
discretion and to the extent permitted by applicable law, apply all
distributions and other amounts receivable with respect to such Trust
Estate pursuant to Section 14.06(a), if the Trustee determines that the
conditions set forth in Section 14.06(a)(i) and (iii) are satisfied and if
the Trustee obtains an Opinion of Counsel to the effect that: (i) such
Trust Estate will not as a result of such action be deemed an association
taxable as a corporation under the Code and (ii) notwithstanding the
acquisition of such Trust Estate by the Trustee, the rights, powers and
duties of the Trustee with respect to such Trust Estate (or the proceeds
thereof) and the related Bondholders, and the respective rights of such
Bondholders shall continue to be governed by the terms of this Indenture.
(d) Notwithstanding anything in this Indenture to the contrary, if the
Bonds have been declared due and payable, then the Trustee may, in its sole
discretion and to the extent permitted by applicable law, retain the Trust
Estate securing the Bonds without compliance with this Section 14.06 and
apply all distributions and other amounts receivable with respect to such
Trust Estate to the payment of principal, premium, if any, and interest on
the Bonds as and when such principal and interest would have become due
pursuant to the terms hereof and of the Bonds if there had not been an
acceleration of the maturity of the Bonds; provided, however, that if the
Trustee is unable to make the determination required by Section 14.06 (a)
(i), in respect of which determination the Trustee may act pursuant to
Section 14.06(b), any money held or collected by the Trustee with respect
to the Bonds shall be applied pursuant to Section 14.09.
Section 14.07. Trustee May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, composition or other
judicial Proceeding relative to the Trust Estate, the Issuer, or any other
obligor upon any of the Bonds or the property of the Trust or of such other
obligor or their creditors, the Trustee (irrespective of whether the Bonds
49
shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any
demand on the Issuer for the payment of any overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise, to:
(i) file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Bonds
issued hereunder and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
which shall constitute administrative expense in any such Proceeding)
and of the Bondholders allowed in such Proceedings,
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of the Bonds in any election of a trustee or
a standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency Proceedings or person performing similar
functions in comparable Proceedings, and
(iii) collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any
receiver, assignee, trustee, liquidator, or sequestrator (or other
similar official) in any such Proceeding is hereby authorized by each
Bondholder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to
the Bondholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 13.07.
(b) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Bondholder
any plan of reorganization, arrangement, adjustment or composition
affecting the Bonds or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect to the claim of any Bondholder in any such
Proceeding.
Section 14.08. Trustee May Enforce Claims Without Possession of Bonds.
All rights of action and claims under this Indenture or the Bonds may
be prosecuted and enforced by the Trustee without the possession of any of
the Bonds or the production thereof in any Proceeding relating thereto, and
any such Proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable expenses, disbursements
and advances of the Trustee, its agents and Counsel, be for the ratable
benefit of the Holders of the Bonds in respect to which such judgment has
been recovered. In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of the Bonds parties to any such Proceedings.
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Section 14.09. Application of Monies.
(a) Any property and monies on deposit and held by the Trustee with
respect to the Bonds, pursuant to this Indenture, including monies
collected pursuant to a sale or other disposition of the Collateral and
monies to be collected pursuant to Section 14.04 and the net amounts
recovered pursuant to Section 14.08, but not including monies received
pursuant to Section 14.06 (which shall be applied as provided in Article
VII) shall be applied in the following order, at the date or dates fixed by
the Trustee:
FIRST: To the payment of all amounts due the Trustee under Section
13.07 and any other Administrative Expenses due and payable;
SECOND: To the payment of interest on the Outstanding Bonds at the
Bond Interest Rate, and, to the extent permitted by law, interest on
overdue interest on the Bonds, at the Bond Interest Rate, ratably, without
preference or priority of any kind among Holders of Bonds;
THIRD: To the payment of principal and premium, if any, of the
Outstanding Bonds, ratably, without preference or priority of any kind
among Holders of Bonds;
FOURTH: To the Issuer, all remaining funds, if any, or any other
person legally entitled thereto.
(b) Whenever monies are to be applied pursuant to the provisions of
this Section 14.09, such monies shall be applied at such times and from
time to time as the Trustee shall determine, having due regard to the
amount of such monies available for application and the likelihood of
additional monies becoming available for such application in the future.
Whenever the Trustee shall apply such funds, it shall fix the date which
shall be a Payment Date (unless it shall deem another date more suitable)
upon which such application is to be made and upon such date interest on
the amounts of principal and interest to be paid on such date shall cease
to accrue. The Trustee shall give notice of the deposit with it of any such
monies and of the fixing of any such date by mail to all Bondholders and
shall not be required to make payment to any Bondholders until such Bond
shall be presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Section 14.10. Limitation on Suits.
No Holder of any Bond shall have any right to institute any Proceedings,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder or Holders have previously filed written notice with the
Trustee of a continuing Event of Default and such notice specifies the nature of
Default;
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(ii) the Holder or Holders representing more than fifty percent (50%) of
the then Aggregate Outstanding Principal Amount of the Bonds shall have filed a
written request with the Trustee to institute Proceedings in respect to such
Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity and security against the costs, expenses and liabilities to be
incurred in compliance with such request;
(iv) the Trustee for thirty (30) days after receipt of such notice, request
and offer of indemnity and security by a Responsible Officer has failed to
institute any such Proceeding; and
(v) no direction inconsistent with such written request has been given to
the Trustee during such thirty (30) day period by the Holder or Holders
representing more than fifty percent (50%) of the then Aggregate Outstanding
Principal Amount of the Bonds;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders of the Bonds.
Section 14.11. Unconditional Rights of Bondholders To Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Bond shall have the right permitted by applicable law, which right is absolute
and unconditional, to receive payment of the principal of, premium, if any, and
interest on such Bond on the respective dates and as and when such payments are
due (or, in the case of any Bond called for partial Redemption) and to institute
suit for enforcement, subject to the terms of this Indenture, of any such
payment, and such right shall not be impaired or affected without the consent of
such Holder.
Section 14.12. Restoration of Rights and Remedies.
If the Trustee or any Bondholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Bondholder, then and in every such case the Issuer, the
Trustee and the Bondholders shall, subject to any determination in such
Proceeding, be restored severally and respectively to their former legal
positions hereunder, and thereafter all rights and remedies granted herein to
the Trustee and the Bondholders shall continue as though no such Proceeding had
been instituted.
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Section 14.13. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Bondholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 14.14. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Bond to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article XIV or by law
to the Trustee or to the Bondholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Bondholders, as the
case may be.
Section 14.15. Control by Bondholders.
With respect to acceleration of the principal amount of the Bonds, the
Holders of Bonds representing more than fifty percent (50%) of the then
Aggregate Outstanding Principal Amount of the Bonds shall have the right to
direct the time, method and place of conducting any Proceeding for any remedy
available to the Trustee hereunder or exercising any trust or power conferred on
the Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; provided, however, that,
subject to Section 13.01, the Trustee need not take any action which it
determines might involve it in liability or be unjustly prejudicial to the
Bondholders not consenting thereto.
Section 14.16. Waiver of Past Defaults.
The Holders of Bonds representing more than fifty percent (50%) of the then
Aggregate Outstanding Principal Amount of the Bonds may waive, on behalf of the
Holders of all the Bonds, any past Default hereunder and its consequences,
except a Default:
(a) in the payment of the principal of or interest on any Bond, or
Trustee's fees and expenses;
(b) in respect to a covenant or provision hereof which, under Section
15.02, cannot be modified or amended without the consent of the Holder of
each Outstanding Bond affected; or
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(c) in actions which deprive the Trustee or any Holder of a lien upon
any of the Collateral or the Trust Estate.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 14.17. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Bond by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may,
in its discretion, assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the Trustee shall not be required to pay any such costs of another
party litigant unless the Trustee is found by the court to have acted in a
manner imposing liability upon the Trustee under Section 13.01 (c); and,
provided further, that the provisions of this Section 14.17 shall not apply to
any Bondholder, or group of Bondholders, holding in the aggregate more than
fifty percent (50%) of the Aggregate Outstanding Principal Amount of the Bonds,
or to any suit instituted by any Bondholder for the enforcement of the payment
of the principal of, premium, if any, or interest on any Bond on or after the
respective maturities or Payment Dates expressed in such Bond (or, in the case
of any Bond called for Redemption, on or after the applicable Redemption Date).
Section 14.18. Waiver of Stay or Extension Law.
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants in, or the
performance of, this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein or therein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 14.19. Action on Bonds.
The Trustee's right to seek and recover judgment on the Bonds or under this
Indenture shall not be affected by the seeking, obtaining or application of any
other relief under or with respect to this Indenture. Neither the lien of this
Indenture nor any rights or remedies of the Trustee or the Bondholders shall be
impaired by the recovery of any judgment by the Trustee or by the levy of any
execution under such judgment upon any portion of the Trust Estate or the
Collateral.
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Section 14.20. Trust Estate.
(a) The Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property or Collateral from
the lien of this Indenture, or convey the Trustee's interest in the same,
in a manner and under circumstances which are not inconsistent with the
provisions of this Indenture. No party relying upon an instrument executed
by the Trustee as provided in this Article XIV shall be bound to ascertain
the Trustee's authority, inquire into the satisfaction of any conditions
precedent or determine the application of any monies.
(b) The Trustee shall, at such time as all the conditions to the
satisfaction and discharge of this Indenture required to be fulfilled under
Section 10.01 with respect to all the Bonds have been fulfilled, release
the Trust Estate and Collateral securing such Bonds from the lien of this
Indenture.
Section 14.21. Opinion Of Counsel.
In connection with any action to be taken pursuant to this Article XIV, the
Trustee shall also be entitled to request, if deemed reasonably necessary by the
Trustee, and to rely upon, an Opinion of Counsel, in form and substance
satisfactory to the Trustee, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding that such
action will not materially and adversely impair the security for the Bonds or
the rights of the Bondholders in contravention of the provisions of this
Indenture.
ARTICLE XV
SUPPLEMENTAL INDENTURES
Section 15.01. Supplemental Indenture Without Consent of Bondholders.
Without the consent of the Holder of any Bonds, the Issuer and, when
authorized by an Issuer Order, the Trustee, at any time and from time to time,
may enter into one or more Supplements hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Trustee any property subject or required to be subjected
to the lien of this Indenture, or to subject to the lien of this Indenture
additional property;
(b) to grant any property to the Trustee;
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(c) to evidence the succession of another Person to the Issuer, and
the assumption by any such successor of the covenants, representations and
warranties of the Issuer herein and in the Bonds contained;
(d) to add to the covenants of the Issuer, for the benefit of the
Holders of all Bonds, or to surrender any right or power herein conferred
upon the Issuer;
(e) to cure any ambiguity, to correct or supplement any provision
herein, or in any Supplement which may be defective or inconsistent with
any other provision herein, or in any Supplement, or to add or amend any
other provisions with respect to matters or questions arising under this
Indenture, which shall not be inconsistent with the provisions of this
Indenture; provided that such action shall not adversely affect the
interests of the Holders of the Bonds; or
(f) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary and required to effect the qualification
of this Indenture under TIA or under any similar federal statute hereafter
enacted, and to add to this Indenture such other provisions as may be
expressly required by TIA.
Section 15.02. Supplemental Indenture With Consent of Bondholders.
(a) With the consent of the Holders representing not less than
two-thirds (66-2/3%) of then Aggregate Outstanding Principal Amount of the
Bonds, by Act of said Holders and the consent of the Issuer, when
authorized by an Issuer Order, the Trustee may enter into one or more
Supplements hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such Supplement shall, without the consent of
the Holder of each Outstanding Bond affected thereby:
(i) change the Stated Maturity or Redemption provisions of any
Bond, or reduce the principal amount thereof or the rate of interest
thereon or change any place of payment where, or the coin or currency
in which, any Bond or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of Redemption, on
or after the applicable Redemption Date);
(ii) reduce the percentage of the then Aggregate Outstanding
Principal Amount of the Bonds, the consent of the Holders of which is
required for any such Supplement, or the consent of the Holders of
which is required for any waiver of compliance with provisions of this
Indenture or Defaults hereunder and their consequences provided for in
this Indenture;
(iii) modify any of the provisions of Section 14.15 or Section
14.16, except to increase any percentage specified therein or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Bond affected thereby;
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(iv) modify or alter the provisions of the definition of the term
"Outstanding";
(v) impair or adversely affect the Trust Estate or the Collateral
except as otherwise permitted herein;
(vi) change the percentage required to direct the Trustee to sell
or liquidate the Trust Estate or Collateral pursuant to Sections 14.04
and 14.06; or
(vii) create any liens on the Collateral ranking prior to or on
parity with the lien of the Indenture, or terminate, or deprive a
Holder of the security of, the lien of the Indenture on the
Collateral.
(b) It shall not be necessary for any Act of Bondholders under this
Section 15.02 to approve the particular form of any proposed Supplement,
but it shall be sufficient if such Act shall approve the substance thereof.
(c) As promptly as practical after the execution by the Issuer and the
Trustee of any Supplement pursuant to this Section 15.02, the Trustee shall
mail to the Holders a notice setting forth in general terms the substance
of such Supplement. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any Supplement.
Section 15.03. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any Supplemental
Indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee may request, shall be entitled to
receive, and (subject to Section 13.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such Supplemental
Indenture is authorized and permitted by this Indenture. The Trustee may, but
shall not (except to the extent required in the case of a supplemental indenture
entered into under Section 15.01(f)) be obligated to, enter into any such
Supplement which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 15.04. Effect of Supplemental Indentures.
Upon the execution of any Supplement under this Article XV, this Indenture
shall be modified in accordance therewith, and such Supplement shall form a part
of this Indenture for all purposes; and every Holder of Bonds theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 15.05. Reference in Bonds to Supplemental Indentures.
Bonds authenticated and delivered after the execution of any Supplement
pursuant to this Article XV may, and if required by the Issuer shall, bear a
notation in form approved by the Trustee as to any matter provided for in such
Supplement. If the Issuer shall so determine, new Bonds so modified as to
conform, in the opinion of the Issuer, to any such Supplement may be prepared
and executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Bonds.
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ARTICLE XVI
BONDHOLDERS' ACTIONS; BONDHOLDERS' LISTS AND REPORTS
Section 16.01. Exercise of Rights of Trustee and Bondholders Not To Be Hindered
or Delayed.
Nothing contained in this Article XVI shall be construed to authorize or
permit, by reason of the scheduling by the Issuer, the Trustee or the
Bondholders of a meeting of Bondholders or any rights expressly or impliedly
conferred hereunder to schedule such a meeting, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Bondholders under any of the provisions of this Indenture or of the Bonds.
Section 16.02. Communications to Bondholders.
(a) The Trustee shall preserve, in as current form as is reasonably
practical, the names and addresses of the Holders of Bonds contained in the
Bond Register.
(b) If the Holders representing not less than twenty five percent
(25%) of the then Aggregate Outstanding Principal Amount of the Bonds
("Applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each Applicant has owned a Bond for a period of at
least six (6) months preceding the date of such application, or since the
date of the original issuance of the Bonds, and such application states
that the Applicants desire to communicate with other Bondholders with
respect to the rights under this Indenture or under the Bonds and is
accompanied by a copy of the form of proxy or other communication which the
Applicants propose to transmit, then the Trustee shall, within five (5)
Business Days after the receipt of such application by a Responsible
Officer:
(i) afford the Applicants access to the information preserved at
that time by the Trustee in accordance with Section 16.02 (a); or
(ii) if release of such information pursuant to clause (i) above
would violate any provision of law applicable to the Trustee, inform
the Applicants as to the approximate number of Holders of Bonds whose
names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 16.02 (a) and as to the
approximate cost of mailing to such Bondholders the form of proxy or
other communication, if any, specified in such application.
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(c) If the Trustee shall, pursuant to clause (ii) above, not afford
the Applicants access to such information, the Trustee shall, upon written
request of the Applicants, mail to each Bondholder whose name and address
appears in the information preserved at the time by the Trustee in
accordance with Section 16.02 (a) a copy of the form of proxy or other
communication which is specified in such request with reasonable promptness
after a tender to the Trustee of the material to be mailed and a payment of
the reasonable expenses of mailing as specified by the Trustee pursuant to
clause (ii) above.
(d) Every Holder of a Bond, by receiving and holding the same, agrees
with the Issuer and Trustee that neither the Issuer nor the Trustee shall
be held accountable by reason of disclosure of such information as to the
names and addresses of Bondholders in accordance with Section 16.02(b)
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 16.02(b).
Section 16.03. Reports by Trustee.
The Trustee is required to mail within sixty (60) days after December 31 of
each year (the "Trustee Annual Report"), commencing in December 1999, to all
registered Holders of Bonds a brief report relating to its eligibility and
qualifications to continue as the Trustee under the Indenture, the amount,
interest rate and maturity date of certain indebtedness owing by the Issuer to
the Trustee in the Trustee's individual capacity, the property and funds
relating to the Bonds physically held by the Trustee as such, the release, or
release and substitution, of any property relating to the Bonds subject to the
lien of Indenture, and any action taken by it that materially affects the Bonds
or the Collateral for the Bonds and that has not been previously reported.
Section 16.04. Reports by Issuer.
The Issuer shall file or cause to be filed with the Trustee, for mailing to
the Bondholders, within fifteen (15) days after its year-end financial
statements have been completed which completion shall be within one hundred and
twenty days (120) of the end of the Issuer's fiscal year, financial statements,
which need not be audited, containing a balance sheet, income statement,
statement of cash flows and notes thereto, prepared in accordance with generally
accepted accounting principles consistently applied, and certified by the
President and the Chief Financial Officer of the Issuer.
ARTICLE XVII
MISCELLANEOUS
Section 17.01. Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer to the Trustee to
take any action under any provision of this Indenture, the Issuer shall
furnish to the Trustee an Officers' Certificate stating that all conditions
59
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and, if requested by the Trustee, an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including one
furnished pursuant to specific requirements of this Indenture relating to a
particular application or request) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) at statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 17.02. Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
(b) Any certificate or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or
Opinion of Counsel, or representations by counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an authorized officer or officers of the Issuer, or a Person designated as
its agent by the Issuer, stating that the information with respect to such
factual matters is in the possession of the Issuer or such Person, unless
such officer or counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to
such matters are erroneous. Any Opinion of Counsel may be based on the
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written opinion of other counsel, in which event, such Opinion of Counsel
shall be accompanied by a copy of such other counsel's opinion and shall
include a statement to the effect that such counsel believes that such
counsel and the Trustee may reasonably rely upon the opinion of such other
counsel.
(c) Where any Person is required to make, give or execute two (2) or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one (1) instrument.
(d) Wherever in this Indenture, in connection with any application, or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or
as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the
case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect the Trustee's
right to rely upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Section 13.01.
(e) Whenever in this Indenture it is provided that the absence of the
occurrence and continuation of a Default or Event of Default is a condition
precedent to the taking of any action by the Trustee at the request or
direction of the Issuer, then notwithstanding that the satisfaction of such
condition is a condition precedent to the Issuer's right to make such
request or direction, the Trustee shall be protected in acting in
accordance with such request or direction if it does not have knowledge of
the occurrence and continuation of such Default or Event of Default as
provided in Section 13.01.
Section 17.03. Acts of Bondholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Bondholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Bondholders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Bondholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 13.01) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner the Trustee deems
sufficient; provided, that any execution acknowledged and certified by a
notary public shall be presumptively valid.
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(c) The ownership of Bonds shall be proved by the Bond Register, to be
maintained by the Trustee as the Bond Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Bonds shall bind the Holder of
every Bond issued upon the registration of transfer thereof or in exchange
thereof or in exchange therefor or in lieu thereof, in respect of anything
done, omitted or suffered to be done by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon
Bonds.
Section 17.04. Notices to Trustee and Issuer.
Except as otherwise provided in this Indenture, all notices, certificates,
requests, demands, authorizations, directions, consents, waivers or other
correspondence provided or permitted by this Indenture shall be sufficiently
given if delivered by telegraph, telecopy, telex or other similar communications
or in writing and delivered in person, or mailed by registered mail, postage
prepaid, addressed as follows:
If to the Issuer: Xxxxxx Resources, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President
With a Copy to: Xxxxxxx, Xxxxxx & Xxxxx, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
If to the Trustee: Continental Stock Transfer & Trust Company
0 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
With a Copy to: Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx, Esq.
Any of the foregoing may, by notice given hereunder to each of the others,
designate any further or different addresses to which subsequent notices,
certificates, requests or other communications shall be sent hereunder.
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Section 17.05. Notices and Reports to Bondholders; Waiver of Notices.
(a) If this Indenture provides for notice to Bondholders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if delivered by telegraph, telecopy, telex or other similar
communications or in writing and mailed, first-class registered or
certified mail, postage prepaid, to each Bondholder affected by such event,
at his address as it appears on the Bond Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Bondholders is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Bondholder shall affect the sufficiency of
such notice with respect to other Bondholders. Any notice which is given in
the manner herein provided shall conclusively be presumed to have been duly
given whether or not actually received by such Bondholder.
(b) If this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Bondholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
(c) If regular mail service is suspended as a result of a strike, work
stoppage, act of God, or similar activity, the Trustee shall deem it
impractical to mail notice of any event to Bondholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.
Section 17.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for any meeting of Bondholders. Any
Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 17.07. Effect of Heading and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 17.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer or the Trustee
shall bind their respective successors and assigns, whether so expressed or not.
Section 17.09. Separability.
In case any provision in this Indenture or in the Bonds shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof or of the Bonds shall not in any way be affected or
impaired thereby.
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Section 17.10. Benefits of Indenture.
Nothing in this Indenture or in the Bonds, expressed or implied, shall give
to any Person, other than the parties hereto and their successors hereunder and
the Bondholders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 17.11. Legal Holidays.
If any Payment Date, Redemption Date or any other date on which principal
of, premium, if any, or interest on any Bond is proposed to be paid or the date
upon which any report is to be given hereunder shall not be a Business Day, then
(notwithstanding any other provision of the Bonds or this Indenture) the payment
or report need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
any such Payment Date, Redemption Date, or other date for the payment of
principal of or interest on any Bond or date for a report hereunder, as the case
may be, and no interest shall accrue for the period from and after any such
nominal date.
Section 17.12. Governing Law.
In view of the fact that Bondholders are expected to reside and maintain
offices in many states and the desire to establish with certainty that this
Indenture will be governed by and construed and interpreted in accordance with
the law of a state having a well-developed body of commercial and financial law
relevant to transactions of the type contemplated herein, this Indenture, each
Supplement, if any, and each Bond shall be construed in accordance with and
governed by the laws of the State of New York applicable to agreements made and
to be performed herein. Any action or proceeding of any kind brought upon or
with respect to this Indenture shall be brought in the appropriate state or
federal court in New York County, New York.
Section 17.13. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 17.14. Issuer Obligation.
No recourse may be taken, directly or indirectly, against the Trustee or
any incorporator, subscriber to the capital stock, stockholder, officer,
director or employee of the Trustee or any predecessor or successor of the
Trustee with respect to the Issuer's obligations with respect to the Bonds or
the obligation of the Issuer or the Trustee under this Indenture or any
certificate or other writing delivered in connection herewith or therewith.
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Section 17.15. Inspection.
The Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Trustee, during the Issuer's normal business hours, to
examine all of the books of account, records, reports and other papers of the
Issuer, to make copies and extracts therefrom, to cause such books to be audited
by Independent Accountants selected by the Trustee, and to discuss its affairs,
finances and accounts with its officers, employees and Independent Accountants
(and by this provision the Issuer hereby authorizes its Accountants to discuss
with such representatives such affairs, finances and accounts), all at such
reasonable times and as often as may be reasonably requested. Any expense
incident to the exercise by the Trustee of any right under this Section shall be
borne by the Issuer.
Section 17.16. Alternate Payment Provisions.
Notwithstanding any provision of this Indenture or of any of the Bonds to
the contrary, the Issuer may enter into any agreement with the relevant paying
agent and any Bondholder providing for a method of payment by such paying agent
to such Holder that is different from the methods provided for in this Indenture
for such payment. The Issuer will furnish to the paying agent a copy of each
such agreement and the paying agent will cause payments to be made in accordance
with such agreements. Such agreements, however, shall not be binding upon any
successor paying agent without the prior written consent of such successor
paying agent.
Section 17.17. Usury.
The amount of interest payable or paid on any Bond under the terms of this
Indenture shall be limited to an amount which shall not exceed the maximum
nonusurious rate of interest allowed by the applicable laws of the United States
or the State of New York (whichever shall permit the higher rate), which could
lawfully be contracted for, charged or received (the "Highest Lawful Rate"). In
the event any payment of interest on any Bond exceeds the Highest Lawful Rate,
the Issuer stipulates that such excess amount will be deemed to have been paid
as a result of an error on the part of both the Trustee, acting on behalf of the
Bondholder, and the Issuer, and the Holder receiving such excess payment shall
promptly, upon discovery of such error or upon notice thereof from the Issuer or
the Trustee, refund the amount of such excess or, at the option of the Trustee,
apply the excess to the payment of principal of such Bond, if any, remaining
unpaid. In addition, all sums paid or agreed to be paid to the Trustee for the
benefit of Bondholders for the use, forbearance or detention of money shall, to
the extent permitted by applicable law and subject to the terms thereof, be
amortized, prorated, allocated and spread through the full term of such Bonds.
IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Indenture
to be duly executed by their respective officers thereunto duly authorized and
duly attested, to be hereunto affixed, as of the day and year first above
written.
XXXXXX RESOURCES, INC.,
ATTEST: Issuer
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------- ---------------------------------------
Xxxxxxx X. Xxxxxx
Title: Senior Vice President
and Chief Financial Officer
ATTEST: CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, Trustee
/s/ Xxxxxx X. Xxxxx By: /s/ X.X. Xxxxx
--------------------- ---------------------------------------
Title: Vice President and
Senior Trust Officer
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State and County, duly
commissioned and qualified, personally appeared Xxxxxxx X. Xxxxxx, to me known
(or proved to me on the basis of satisfactory evidence) to be the person
described in and who executed the foregoing instrument, who acknowledged that he
was the duly elected Vice President and Chief Financial Officer of Xxxxxx
Resources, Inc., a corporation, and that he executed the foregoing instrument on
behalf of such corporation, being duly authorized to do so.
WITNESS my hand and Notarial Seal at office this 1st day of
February, 1999.
Notary Public /s/ Xxxxxx X. Xxxxxxx
My Commission Expires: 10/05/02
