1
EXHIBIT T3C
FIRST MERCHANTS ACCEPTANCE CORPORATION
AND
IBJ XXXXXXXX BANK & TRUST COMPANY
---------------------------
INDENTURE
Dated as of March 4, 1998
---------------------------
$44,000,000
NOTES
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2
FIRST MERCHANTS ACCEPTANCE CORPORATION
NOTES
TIE-SHEET
of provisions of Trust Indenture Act of 1939 and the Indenture dated as of
March 4, 1998, between First Merchants Acceptance Corporation and IBJ Xxxxxxxx
Bank & Trust Company, Trustee.
TRUST INDENTURE
ACT OF 1939
SECTION INDENTURE SECTION
-------------------------------- -------------------
310(a)(1)(2) . . . . . . . . . 8.1 and 8.12
(a)(3) . . . . . . . . . . . Not applicable
(a)(4) . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . 8.8 and 8.9
(c) . . . . . . . . . . . . Not applicable
311(c) . . . . . . . . . . . . Not applicable
312(a) . . . . . . . . . . . . 4.1(A), (B)
(b) . . . . . . . . . . . . 4.1(C)
(c) . . . . . . . . . . . . 4.1(D)
313(a) . . . . . . . . . . . . 4.3
(b) . . . . . . . . . . . . Not applicable
(c) . . . . . . . . . . . . 4.3
(d) . . . . . . . . . . . . 4.3
314(a) . . . . . . . . . . . . 4.2(A) through (D)
(b) . . . . . . . . . . . . Not applicable
(c) . . . . . . . . . . . . 13.3
(d) . . . . . . . . . . . . Not applicable
(e) . . . . . . . . . . . . 13.3
315(a) . . . . . . . . . . . . 8.2(A)
(b) . . . . . . . . . . . . 5.2
(c) . . . . . . . . . . . . 8.2(B)
(d) . . . . . . . . . . . . 8.2(C)
(e) . . . . . . . . . . . . 5.12
316(a)(1) . . . . . . . . . . . 5.6 and 5.15
(a)(2) . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . 5.11
317(a) . . . . . . . . . . . . 5.7 and 5.9
(b) . . . . . . . . . . . . 3.2(B), (C)
318(a) . . . . . . . . . . . . 13.6
(c) . . . . . . . . . . . . 13.6
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This tie-sheet does not constitute a part of the Indenture.
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Applicable Share, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Available Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Board of Directors or Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
business day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
capital stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Certified Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Company Order and Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Daily Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
date of this Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Defaulted Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Executive Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fair Market Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Federal Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Global Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
main office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
maturity or mature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Note or Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Note Co-Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Note Register and Note Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Noteholder, holder of the Notes, Holder or holder . . . . . . . . . . . . . . . . . . . . . . . . . 14
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Original Issue Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
paying agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
place of payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
predecessor Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Proportionate Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Pro-Rata Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Responsible Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
supplemental indenture or indenture supplemental hereto . . . . . . . . . . . . . . . . . . . . . . 17
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Trust Indenture Act or TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.1 Designation, Amount and Issue of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.2 Form of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.3 Dates, Payments, and Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.4 Numbers and Legends on Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.5 Execution of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.6 Registration of Transfer of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.7 Exchange and Registration of Transfer of Notes . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.8 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.9 Recognition of Registered Holders of Definitive Notes and Temporary Notes . . . . . . . . . 22
SECTION 2.10 Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.11 Form and Authentication of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.12 Surrender and Cancellation of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 3 PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.1 Will Punctually Pay the Payments on the Notes . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(A) Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(B) Appointment of Trustee as Paying Agent; Duty of
Paying Agent Other Than Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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(C) Duty of Company Acting as Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 25
(D) Delivery to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(E) All Sums to be Held Subject to Section 13.2 . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.3 Compliance with the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.4 Will Keep, and Permit Examination of, Records and Books
of Account and Will Permit Visitation of Property . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.5 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.6 Restrictions on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.7 Compliance Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.8 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 4 NOTEHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.1 Noteholder lists, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.2 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 5 REMEDIES OF TRUSTEE AND NOTEHOLDERS UPON DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.1 Definition of Default and Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.2 Trustee to Give Noteholders Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.3 Declaration of Principal and Accrued Interest Due Upon
Default; Holders of Specified Percentage of Notes May
Waive Default Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.4 Power of Trustee to Protect and Enforce Rights . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.5 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(A) Delay, Etc. Not a Waiver of Rights . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.6 Holders of Specified Percentage of Notes May Direct
Judicial Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(A) Payment of Principal and Interest to Trustee Upon
Occurrence of Certain Defaults; Judgment May be
Taken by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(B) Enforcement of Rights by Trustee During Continuance
of an Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(C) Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.8 Possession of Notes Unnecessary in Action by Trustee . . . . . . . . . . . . . . . . . . . 34
SECTION 5.9 Trustee May File Necessary Proofs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.10 Limitation Upon Right of Noteholders to Institute Certain Legal Proceedings . . . . . . . 35
SECTION 5.11 Right of Noteholder to Receive and Enforce Payment Note Impaired . . . . . . . . . . . . . 35
SECTION 5.12 Court May Require Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.13 Unenforceable Provision Inoperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 5.14 If Enforcement Proceedings Abandoned, Status Quo is Established . . . . . . . . . . . . . . 36
SECTION 5.15 Noteholders May Waive Certain Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 6 EVIDENCE OF RIGHTS OF NOTEHOLDERS
AND OWNERSHIP OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.1 Evidence of Ownership of Definitive Notes and Temporary
Notes Issued Hereunder in Registered Form . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 7 CONSOLIDATION, MERGER AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.1 Company May Merge, Consolidate, Etc., Upon Certain Terms . . . . . . . . . . . . . . . . . 37
SECTION 7.2 Successor Corporation to be Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.3 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 8 CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8.1 Requirement of Corporate Trustee, Eligibility . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8.2 Acceptance of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8.3 Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.4 Trustee May Own Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.5 Trustee May Rely on Certificates, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.6 Money Held in Trust Not Required to be Segregated . . . . . . . . . . . . . . . . . . . . . 41
SECTION 8.7 Compensation, Reimbursement, Indemnity, Security . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.8 Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.9 Resignation, Removal, Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . 48
SECTION 8.10 Acceptance by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(A) Notice, Etc. on Behalf of Company Delivered to
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(B) Cash, Securities, Etc. to be Held by Trustee . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.12 Merger or Consolidation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.13 Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 9 DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.1 Acknowledgment of Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.2 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 10 MEETING OF NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.1 Purposes for which Meetings May be Called . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.2 Call of Meeting by Trustee; Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.3 Call of Meetings by Trustee; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.4 Meetings, Notice and Entitlement to be Present . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.5 Regulations May be Made by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.6 Manner of Voting at Meetings and Record to be Kept . . . . . . . . . . . . . . . . . . . . 55
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SECTION 10.7 Evidence of Action by Holders of Specified Percentage of
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.8 Exercise of Right of Trustee or Noteholders May Not be
Hindered or Delayed by Call of Meeting of Noteholders . . . . . . . . . . . . . . . . . . . 56
ARTICLE 11 SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.1 Purposes for Which Supplemental Indentures May be
Executed by Company and Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.2 Modification of Indenture by Written Consent of
Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.3 Requirements for Execution; Duties and Immunities of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.4 Supplemental Indentures Part of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.5 Notes Executed After Supplemental Indenture to be
Approved by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 11.6 Supplemental Indentures Required to Comply with Trust
Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 12.1 Immunity of Certain Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 13 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.1 Benefits Restricted to Parties and to Holders of Notes . . . . . . . . . . . . . . . . . . 60
SECTION 13.2 Deposits for Notes Not Claimed for Specified Period to be
Returned to Company on Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.3 Formal Requirements of Certificates and Opinions Hereunder . . . . . . . . . . . . . . . . 60
SECTION 13.4 Evidence of Act of the Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.5 Parties to Include Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.6 In Event of Conflict with Trust Indenture Act of 1939,
Provisions Therein to Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.7 Request, Notices, Etc. to Trustee or Company . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.8 Manner of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.10 Payments Due on Days When Banks Closed . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.11 Backup Withholding Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.12 Titles of Articles and Sections of This Indenture Not Part Thereof . . . . . . . . . . . . 63
SECTION 13.13 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.14 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.15 Plan Provisions Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
-v-
8
This INDENTURE, dated as of March 4, 1998, between FIRST MERCHANTS
ACCEPTANCE CORPORATION, a Delaware corporation as reorganized pursuant to the
Plan (as defined herein) (herein called the "Company") and IBJ XXXXXXXX BANK &
TRUST COMPANY, a banking corporation organized under the laws of the State of
New York, the mailing address of which is Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (herein, together with each successor as such trustee hereunder, called
the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its Notes (hereinafter sometimes called the "Notes") in
the aggregate Principal amount of up to $44,000,000 and, to provide the terms
and conditions upon which the Notes are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this Indenture;
WHEREAS, the Notes and the Trustee's certificate of authentication to
be borne by the Notes are to be substantially in the following forms,
respectively:
[FORM OF FACE OF NOTES] CUSIP NO. 320816 AC 5
-----------
NO. FIRST MERCHANTS ACCEPTANCE CORPORATION
NOTE
First Merchants Acceptance Corporation, a corporation organized and
existing under the laws of the State of Delaware as reorganized pursuant to the
Plan (hereinafter called the "Company," which term shall include any successor
corporation as defined in the Indenture referred to on the reverse side
hereof), promises to pay to ____________________ or registered assigns, such
holder's Applicable Share of the Payments, to the extent not previously paid
pursuant to and in accordance with the terms of this Note and the Indenture, on
the date that is four years and eleven months after the Effective Date (the
"Stated Maturity"). Payments shall be made in such coin or currency of the
United States of America as at the time of payment is legal tender for public
and private debts, in Stock Option Shares (as defined in the Plan) with a value
equal to the Stock Option Value (as defined in the Plan), in UDC Warrants (as
defined in the Plan) with a value equal to the fair market value of the UDC
Warrants on the date of distribution of the UDC Warrants to the holders of the
Notes as determined by a national independent public accounting firm selected
by the Board of Directors of the Reorganized Company (the "Independent
Appraiser") or in shares of common stock of UDC issued or issuable upon
exercise of the UDC Warrants (the "UDC Warrant Shares") with a value equal to
Fair Market Value of the UDC Warrant Shares on the date of distribution of the
UDC Warrant Shares to the holders of the Notes. Interest shall accrue on the
unpaid Principal amount hereof from the Payment Date to which Interest has been
paid immediately preceding the date hereof (unless the date hereof is a Payment
Date to which Interest has been paid, in which case from the date hereof) or,
if no Interest has been paid on this Note from the Original Issue Date hereof,
from such Original Issue Date and shall be
9
due and payable pursuant to and in accordance with the terms of this Note and
the Indenture. Installments of cash Payments shall be payable quarterly on the
last business day of March, June, September and December of the applicable
year, commencing June 30, 1998 (each, a "Payment Date"), until the earlier of
(a) such time as all of the Payments have been paid in full or (b) the Stated
Maturity. Each installment of cash Payments on all then Outstanding Notes
prior to the Stated Maturity shall be in an amount equal to the Available Cash,
if any, on the date that is ten business days prior to the date of such
installment and shall be applied first to the payment of Interest on all then
Outstanding Notes and then to the payment of Principal of all then Outstanding
Notes. Notwithstanding the foregoing, in the event that the Available Cash on
the date that is ten business days prior to the date of such installment is
less than $300,000, the Company may elect not to make a quarterly installment
of cash Payments to the holders of the Notes on the date that such installment
would otherwise be due, and the Company may elect not to make any future
quarterly installment of cash Payments to the holders of the Notes until
additional Available Cash is received by the Company which, when aggregated
with existing Available Cash, would equal or exceed $300,000 as of the date
that is ten business days prior to the date of such installment (the "De
Minimis Exception").
The Company will pay on each Payment Date to the person in whose name
this Note is registered at the close of business on the Regular Record Date
preceding such Payment Date such person's Applicable Share of the Payments, if
any are due and payable to such person's subclass pursuant to and in accordance
with the terms of this Note and the Indenture, unless the Company shall default
in the payment of Payments due on such Payment Date, in which case such
defaulted payments shall be paid to the person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of
such defaulted payments established by notice to the registered holders of
Notes given by mail to said holders as their names and addresses appear in the
Note Register not less than ten (10) days preceding such Special Record Date.
The Payments, if any are due and payable pursuant to and in accordance with the
terms of this Note and the Indenture, shall be payable at the main office of
IBJ Xxxxxxxx Bank & Trust Company, Trustee under the Indenture referred to on
the reverse side hereof, in New York; provided, however, that the Payments on
this Note may be payable, at the option of the Company, by wire transfer of
Federal funds or by check, Stock Option Shares (as defined in the Plan), UDC
Warrants (as defined in the Plan) or UDC Warrant Shares mailed to the person
entitled thereto as such person's address shall appear on the Note Register
(including the records of any Note Co-Registrar).
Reference is hereby made to the further provisions of this Note set
forth on the reverse side hereof, and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse side hereof, or be or become valid or obligatory for
any purpose, until the authentication certificate endorsed hereon shall have
been signed by IBJ Xxxxxxxx Bank & Trust Company, Trustee under such Indenture,
or a successor trustee thereto under such Indenture.
-2-
10
IN WITNESS WHEREOF, FIRST MERCHANTS ACCEPTANCE CORPORATION has caused
this Note to be signed in its name by its President and Chief Executive Officer
or one of its Vice Presidents by his signature or a facsimile thereof, and its
corporate seal to be affixed or printed or engraved hereon, or a facsimile
thereof, and attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
Dated: FIRST MERCHANTS ACCEPTANCE CORPORATION
By:
--------------------------------
Title:
-----------------------------
Seal:
Attest:
---------------------------
Title:
---------------------
-3-
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[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This Note is one of the Notes described or provided for in the
Indenture referred to on the reverse side hereof.
IBJ Xxxxxxxx Bank & Trust Company,
as Trustee
By:
-----------------------------
Authorized Officer
[FORM OF REVERSE OF NOTE]
FIRST MERCHANTS ACCEPTANCE CORPORATION
NOTE
This Note is one of a duly authorized issue of Notes of the Company
designated as its Notes (herein called the "Notes"), limited in aggregate
Principal amount of $44,000,000 (except for Notes authenticated and delivered
upon transfer of, or in exchange for or in lieu of other Notes), all issued and
to be issued only in fully registered form without coupons under an indenture
(herein, together with any indenture supplemental thereto, called the
"Indenture"), dated as of March 4, 1998, duly executed and delivered by First
Merchants Acceptance Corporation to IBJ Xxxxxxxx Bank & Trust Company, Trustee
(the Trustee, together with its successors being herein called the "Trustee"),
to which Indenture (which is hereby made a part hereof and to all of which the
holder by acceptance hereof assents) reference is hereby made for a description
of the respective rights of and restrictions upon the Company and the holders
of the Notes, and the rights, limitations of rights, duties and immunities of
the Trustee in respect thereof.
As used herein, the following capitalized terms shall have the
following meanings:
"Applicable Share," with respect to the holder of a Note, means (i)
with respect to an Allowed Subclass 7A-1 Claim (as defined in the Plan) held by
such holder, or in the event of a transfer of a Note, held by a predecessor
holder, the sum of such holder's Pro-Rata Share and the number obtained by
multiplying such holder's Proportionate Share by a fraction, the numerator of
which is the aggregate additional Principal as of the Effective Date allocated
to the Allowed Subclass 7A-1 Claims in an amount equal to the Additional Equity
Value (as defined in the Plan) and the denominator of which is $44,000,000 and
(ii) with respect to an Allowed Subclass 7A-2 Claim (as defined in the Plan)
held by such holder, or in the event of a transfer of a Note, held by a
predecessor holder, such holder's Pro-Rata Share minus the number obtained by
multiplying such holder's Proportionate Share by a fraction, the
-4-
12
numerator of which is the aggregate additional Principal as of the Effective
Date allocated to the Allowed Subclass 7A-1 Claims in an amount equal to the
Additional Equity Value and the denominator of which is $44,000,000.
"Available Cash" shall mean cash available to the Company after
satisfaction of senior obligations under the Plan, obligations to Class 8A
Interestholders, if any, under the Plan and post-confirmation expenses
(including any reserve deemed reasonable by the board of directors for the
Company for anticipated post-confirmation expenses) in accordance with the
Plan.
"Effective Date" shall have the meaning set forth in the Plan.
"Fair Market Value" per share of UDC Warrant Share on any date shall
mean, except as hereinafter provided, the average closing price of the common
stock of UDC for the ten consecutive business days immediately preceding the
third business day prior to such date as reported on the Nasdaq National Market
("Nasdaq") or, if such common stock is not traded on Nasdaq, then as
reported on the principal domestic stock exchange on which such stock is then
listed or admitted to trading, or, if such common stock is neither listed or
admitted to trading on any domestic stock exchange nor traded on Nasdaq, then
as reported in the over-the-counter market, as furnished by the National
Quotation Bureau, Inc., or, if such firm at the time is not engaged in the
business of reporting such prices, as furnished by any similar firm then
engaged in such business as selected by the Reorganized Company, or if there is
no such firm, as furnished by any member of the National Association of
Securities Dealers, Inc. selected by the Reorganized Company. If at any time
such common stock is neither listed on any domestic exchange, nor traded on
Nasdaq, nor otherwise quoted in the domestic over-the-counter market, then the
Fair Market Value shall be the fair market value per share of such common stock
on the date of distribution of the UDC Warrant Shares to the holders of the
Notes as determined by an Independent Appraiser selected by the Reorganized
Company.
"Interest," with respect to a Note, means interest on the unpaid
Principal of such Note, compounded quarterly from the Effective Date until such
time, if any, that the Principal has been paid or duly provided for, at the
applicable federal rate for medium term obligations as of the Effective Date.
"Payments" means, collectively, payments of Interest and payments of
Principal on all of the Outstanding Notes.
"Plan" means that certain Second Amended Joint Plan under Chapter 11 of
the United States Bankruptcy Code of the predecessor of the Company as
confirmed by the United States District Court for the District of Delaware.
"Principal," with respect to a Note on the Effective Date, shall be an
amount equal to the holder of such Note's Applicable Share of $44,000,000. The
original Principal
-5-
13
amount of a Note shall be reduced by Payments by the Company to the holder of
the Note, or, in the event of a transfer of a Note, to any predecessor holder,
which Payments are allocated by the Company to Principal in accordance with the
terms of this Note and the Indenture. The Principal of all Outstanding Notes
shall be equal to $44,000,000 on the Effective Date.
"Proportionate Share" means, with respect to the holder of a Note, the
proportion that an Allowed Subclass 7A-1 Claim under and as defined in the Plan
held by such holder or, in the event of a transfer of a Note, held by a
predecessor holder, or an Allowed Subclass 7A-2 Claim under and as defined in
the Plan held by such holder or, in the event of a transfer of a Note, held by
a predecessor holder, as applicable, bears to the aggregate amount of all
Allowed Subclass 7A-1 Claims or all Allowed Subclass 7A-2 Claims, as applicable
(including any applicable Contested Claim Reserve, as defined in the Plan).
"Pro-Rata Share" means, with respect to the holder of a Note, the
proportion that an Allowed Subclass 7A-1 Claim under and as defined in the Plan
held by such holder or, in the event of a transfer of a Note, held by a
predecessor holder, or an Allowed Subclass 7A-2 Claim under and as defined in
the Plan held by such holder or, in the event of a transfer of a Note, held by
a predecessor holder, bears to the aggregate amount of all Allowed Subclass
7A-1 Claims and Allowed Subclass 7A-2 Claims (including any Contested Claim
Reserve, as defined in the Plan).
If the Company shall deposit with the Trustee in trust funds
sufficient to pay the entire amount of Payments with respect to the Notes and
shall comply with the other provisions of the Indenture in respect thereof,
then from and after said date, such Notes shall no longer be entitled to any
benefit under the Indenture and, as respects the Company's liability thereon,
such Notes shall be deemed to have been paid.
To the extent permitted by, and as provided in, the Indenture, the
Company may, by entering into an indenture or indentures supplemental to the
Indenture, modify, alter, add to or eliminate in any manner any provisions of
the Indenture, or the rights of the Noteholders or the rights and obligations
of the Company, upon the consent, as in the Indenture provided, of the holders
of not less than a majority in Principal amount of the Notes then Outstanding.
Notwithstanding the foregoing, no supplemental indenture shall, without the
consent of the holder of each Outstanding Note affected thereby, change the
Stated Maturity of any Note, reduce the Payments of any Note, if any are due
and payable pursuant to and in accordance with the terms of this Note and the
Indenture, reduce the percentage of the aggregate Principal amount of
Outstanding Notes the consent of the holders of which is required for any
supplemental indenture or for any waiver of compliance with certain provisions
of the Indenture, or modify any of the provisions of the Indenture relating to
the foregoing, all except as provided in the Indenture.
-6-
14
As provided for and subject to the provisions of the Indenture, if an
Event of Default shall have occurred and be continuing, the Principal of and
all Interest accrued on all the Outstanding Notes may be declared, and upon
such declaration shall become, immediately due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture. The
Indenture provides that such declaration and its consequence may be waived by
the holders of a majority in Principal amount of the Notes then Outstanding.
The holder of this Note shall not have any right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such holder previously shall have
delivered to the Trustee written notice that one or more Events of Default has
occurred and is continuing, the holders of not less than twenty-five percent
(25%) in Principal amount of the then Outstanding Notes shall have requested
the Trustee in writing to institute such proceeding, one or more Noteholders
shall have offered to the Trustee adequate security and indemnity, satisfactory
to it, against the costs, expenses and liabilities to be incurred thereby, the
Trustee shall have refused or neglected to act on such notification, request
and offer of indemnity for at least sixty (60) days and no direction
inconsistent with such notification shall have been given to the Trustee by
holders of not less than a majority in Principal amount of the Outstanding
Notes.
The Notes are issuable as registered Notes without coupons. Subject
to the provisions of the Indenture, the transfer of this Note is registrable by
the registered holder hereof, in person or by his attorney duly authorized in
writing, at the main office of IBJ Xxxxxxxx Bank & Trust Company in New York,
New York, on books of the Company to be kept for that purpose at said office,
upon surrender and cancellation of this Note duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Trustee, and thereupon a new fully registered Note of the same series will be
issued to the transferee or transferees in exchange therefor with a Principal
amount equal to the unpaid Principal amount of the Note so exchanged; and this
Note, with or without others of the same series, may in like manner be
exchanged for one or more new fully registered Notes of the same series of
other authorized denominations with an aggregate Principal amount equal to the
unpaid Principal amount of the Note so exchanged; all as provided in the
Indenture. No service charge shall be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge or expense that may be imposed in relation thereto.
Prior to due presentment for registration of transfer, the Company,
the Trustee or any agent of the Company or the Trustee may deem and treat the
person in whose name this Note shall be registered at any given time upon the
Note Register as the absolute owner of this Note for the purpose of receiving
any Payments on this Note, if any are due and payable pursuant to and in
accordance with the terms of this Note and the Indenture, and for all other
purposes whether or not this Note be overdue; and neither the Company nor the
Trustee, nor any agent of the Company or the Trustee shall be bound by any
notice to the contrary.
No recourse under any obligation, covenant or agreement contained in
the Indenture or in any Note, or because of the creation of the contingent
indebtedness represented hereby,
-7-
15
shall be had against any incorporator, any past, present or future stockholder,
or any officer or director of the Company or any successor corporation, as such
under any rule of law, statute or constitution.
In any case where the date fixed for the payment of Principal or
Interest on any of the Notes shall not be a business day, then the payment of
such Principal or Interest 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 date fixed for such payment, and no Interest shall accrue for the period
from and after such date.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _______________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Date: Your Signature:
---------------------- ------------------------------
Signature Guarantee:
-------------------------------------------------------
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
-----------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
[END OF FORM OF NOTES]
-8-
16
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions;
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee, as in
this Indenture provided, and issued, the valid, binding and legal obligations
of the Company, and to constitute these presents a valid agreement according to
its terms, have been done and performed, and the execution of this Indenture
and the issue hereunder of the Notes have in all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration
of the premises, of the acceptance of the Notes by the holders thereof and of
the sum of one dollar duly paid to it by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit of the
respective holders from time to time of the Notes, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 The terms defined in this Article 1 shall (except as
herein otherwise expressly provided) for all purposes of this Indenture, have
the respective meanings specified in this Article and include the plural as
well as the singular. Any term defined in the Trust Indenture Act of 1939,
either directly or by reference therein, and not defined in this Indenture,
unless the context otherwise specifies or requires, shall have the meaning
assigned to such term therein as in force on the date of this Indenture.
"Act" when used with respect to any Noteholder has the meaning
specified in Section 13.4.
"affected" has the meaning specified in Section 11.2.
"Affiliate" means any person which directly or indirectly controls, is
controlled by, or is under direct or indirect common control with, the Company.
A person shall be deemed to control a corporation, partnership or other entity,
for the purpose of this definition, if such person possesses, directly or
indirectly, the power or direct or cause the direction of the management and
policies of such corporation, partnership or other entity, whether through the
ownership of voting securities, by contract, or otherwise.
-9-
17
"Applicable Share," with respect to the holder of a Note, means (i)
with respect to an Allowed Subclass 7A-1 Claim (as defined in the Plan) held by
such holder, or in the event of a transfer of a Note, held by a predecessor
holder, the sum of such holder's Pro-Rata Share and the number obtained by
multiplying such holder's Proportionate Share by a fraction, the numerator of
which is the aggregate additional Principal as of the Effective Date allocated
to the Allowed Subclass 7A-1 Claims in an amount equal to the Additional Equity
Value (as defined in the Plan) and the denominator of which is $44,000,000 and
(ii) with respect to an Allowed Subclass 7A-2 Claim (as defined in the Plan)
held by such holder, or in the event of a transfer of a Note, held by a
predecessor holder, such holder's Pro-Rata Share minus the number obtained by
multiplying such holder's Proportionate Share by a fraction, the numerator of
which is the aggregate additional Principal as of the Effective Date allocated
to the Allowed Subclass 7A-1 Claims in an amount equal to the Additional Equity
Value (as defined in the Plan) and the denominator of which is $44,000,000.
"Authenticating Agent" means the agent of the Trustee which at the
time shall be appointed and acting pursuant to Section 8.13.
"Available Cash" shall mean cash available to the Company after
satisfaction of senior obligations under the Plan, obligations to Class 8A
Interestholders, if any, under the Plan and post-confirmation expenses
(including any reserve deemed reasonable by the board of directors for the
Company for anticipated post-confirmation expenses) in accordance with the
Plan.
"Board of Directors" or "Board" means the Board of Directors of the
Company or any committee of such Board of Directors, however designated,
authorized to exercise the powers of such Board of Directors in respect of the
matters in question.
"business day" means any day which is not a Saturday, Sunday or other
day on which national banks having their principal office in the State of
Illinois are authorized or obligated by law or required by executive order to
close.
"capital stock" includes any and all shares, interests, participations
or other equivalents (however designated) of corporate stock of any
corporation.
"Certified Resolution" means a copy of a resolution or resolutions
certified, by the Secretary or an Assistant Secretary of the corporation
referred to, as having been duly adopted by the Board of Directors of such
corporation or any committee of such Board of Directors, however designated,
authorized to exercise the powers of such Board of Directors in respect of the
matters in question and to be in full force and effect on the date of such
certification.
"common stock" means any capital stock of a corporation which is not
preferred as to the payment of dividends or the distribution of assets on any
voluntary or involuntary
-10-
18
liquidation over shares of any other class of capital stock of such
corporation, including, without limitation, in the case of the Company, its
Common Stock, par value $.01 per share.
"Company" means and includes First Merchants Acceptance Corporation, a
Delaware corporation as reorganized pursuant to the Plan, until any successor
corporation shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by its President and Chief
Executive Officer or any Vice President and its Secretary or Assistant
Secretary and delivered to the Trustee.
"corporation" means and includes corporations, associations, companies
and business trusts.
"Daily Newspaper" means a newspaper in the English language of general
circulation in New York, New York and customarily published on each business
day of the year, whether or not such newspaper is published on Saturdays,
Sundays and legal holidays.
"date of this Indenture" means March 4, 1998.
"day" means a calendar day.
"Default" has the meaning specified in Section 5.2.
"Defaulted Payment" shall have the meaning set forth in Section 2.3.
"Depositary" means with respect to Notes issuable in whole or in part
in the form of one or more Global Notes, The Depositary Trust Company or any
other clearing agency registered under the Securities Exchange Act of 1934, as
amended, that is subsequently designated to act as Depositary for the Notes.
"Effective Date" shall have the meaning set forth in the Plan.
"Event of Default" means any act or occurrence of the character
specified in Section 5.1.
"Executive Officer" means, with respect to any corporation, the
Chairman of the Board, the Vice Chairman of the Board, the President, the
Executive Vice President, any other Vice President or the Treasurer of such
corporation.
"Fair Market Value" per share of a UDC Warrant Share on any date shall
mean, except as hereinafter provided, the average closing price of the common
stock of UDC for the ten consecutive business days immediately preceding the
third business day prior to such
-11-
19
date as reported on the Nasdaq National Market ("Nasdaq") or, if such common
stock is not traded on Nasdaq, then as reported on the principal domestic stock
exchange on which such stock is then listed or admitted to trading, or, if such
common stock is neither listed or admitted to trading on any domestic stock
exchange nor traded on Nasdaq, then as reported in the over-the-counter market,
as furnished by the National Quotation Bureau, Inc., or, if such firm at the
time is not engaged in the business of reporting such prices, as furnished by
any similar firm then engaged in such business as selected by the Reorganized
Company, or if there is no such firm, as furnished by any member of the
National Association of Securities Dealers, Inc. selected by the Reorganized
Company. If at any time such common stock is neither listed on any domestic
exchange, nor traded on Nasdaq, nor otherwise quoted in the domestic
over-the-counter market, then the Fair Market Value shall be the fair market
value per share of such common stock on the date of distribution of the UDC
Warrant Shares to the holders of the Notes as determined by an Independent
Appraiser selected by the Reorganized Company.
"Federal Bankruptcy Code" means Title I of the Bankruptcy Reform Act
of 1978, as amended, and codified at Title 11 of the United States Code and the
Federal Rules of Bankruptcy Procedure as in effect as of the date hereof or as
hereafter amended.
"Global Note" means a Note that evidences all or part of the Notes and
bears the legend set forth in Section 2.2.
"Indebtedness" means (i) any liability of any person (a) for borrowed
money, (b) evidenced by a note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
property or assets (other than inventory or similar property acquired in the
ordinary course of business), including securities, or (c) for the payment of
money relating to a capitalized lease obligation; provided, however, that
Indebtedness shall not include any liability, the payment or performance of
which is secured by a security interest in any property or asset, if recourse
by the obligee under such liability upon the non-payment or non-performance
thereof is limited to realization pursuant to such security interest upon such
property or asset; (ii) any guarantee by any person of, or any commitment
relating to, any liability of others described in the preceding clause (i); and
(iii) any amendment, renewal, extension or refunding of any liability referred
to in clause (i) and (ii) above.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest," with respect to a Note, means interest on the unpaid
Principal of such Note, compounded quarterly from the Effective Date until such
time, if any, that the Principal has been paid or duly provided for, at the
applicable federal rate for medium term obligations as of the Effective Date.
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"Lien" means any mortgage, lien, pledge, charge or other security
interest or encumbrance of any kind.
"main office" with reference to the Trustee shall mean the principal
corporate trust office of the Trustee, which office is, on the date of this
Indenture, located at Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"maturity" or "mature," when used with respect to any Note, means the
date that is four years and eleven months after the Effective Date or such
earlier date on which the Principal of the Note becomes due and payable by
declaration of acceleration.
"Note" or "Notes" mean one or more of the notes comprising the
Company's issue of Notes issued, authenticated and delivered under this
Indenture.
"Note Co-Registrar" has the meaning specified in Section 2.6.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.6.
"Noteholder," "holder of the Notes," "Holder" or "holder" or other
similar terms mean any person in whose name, as of any particular date, a Note
is registered on the Note Register.
"Officers' Certificate" means a certificate signed by the President or
a Vice President and the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee. Each such certificate, to the extent required,
shall comply with the provisions of Section 13.3 hereof.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company and who shall be
reasonably satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.3 if and to the extent required by the
provisions of such Section.
"Original Issue Date" with respect to any Note (or portion thereof)
means the earlier of (A) the date of such Note or (B) the date of any Note (or
portion thereof) for which such Note was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Outstanding" means, as of the date of determination, all Notes which
theretofore shall have been authenticated and delivered by the Trustee under
this Indenture, except (A) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation, (B) Notes or portions thereof for
the payment of which money in the necessary amount shall have been deposited
with the Trustee or any paying agent in trust for the holders of the Notes, and
(C) Notes in exchange or substitution for or in lieu of which other Notes have
been authenticated and delivered under any of the provisions of this Indenture.
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Notwithstanding the foregoing provision of this paragraph, Notes in exchange or
substitution for or in lieu of which other Notes have been authenticated and
delivered under Section 2.10 hereof and which have not been surrendered to the
Trustee for cancellation or the payment of which shall not have been duly
provided for, shall be deemed to be Outstanding. In determining whether the
Noteholders of the requisite Principal amount of Notes Outstanding have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or
any Affiliate of the Company, including any Subsidiary, or such other obligor
shall be disregarded and deemed not 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 Notes which
the Trustee knows to be so owned shall be disregarded. Notes so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the Company or any other
obligor upon the Notes or any Affiliate of the Company or a Subsidiary or such
other obligor.
"paying agent" means any person authorized by the Company to pay the
Payments on any Notes on behalf of the Company.
"Payment Date" shall have the meaning set forth in Section 2.3 of the
Indenture.
"Payments" means, collectively, payments of Interest and payments of
Principal on all of the Outstanding Notes.
"person" means any individual, partnership, corporation, trust,
unincorporated association, joint venture, government or any department or
agency thereof, or any other entity.
"place of payment" means such place as designated in Section 2.3
hereof.
"Plan" means that certain Second Amended Joint Plan under Chapter 11 of
the United States Bankruptcy Code of the predecessor to the Company as
confirmed by the United States District Court for the District of Delaware.
"predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.10 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note.
"Principal," with respect to a Note on the Effective Date, shall be an
amount equal to the holder of such Notes's Applicable Share of $44,000,000.
The original Principal amount of a Note shall be reduced by Payments by the
Company to the holder of the Note or, in the event of a transfer of the Note,
to any predecessor holder, which Payments are
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allocated by the Company to Principal in accordance with the terms of the Notes
and this Indenture. The Principal of all Outstanding Notes shall be equal to
$44,000,000 on the Effective Date.
"Proceeding" means any suit in equity, action at law or other legal,
equitable, administrative or similar proceeding.
"Proportionate Share" means, with respect to the holder of a Note, the
proportion that an Allowed Subclass 7A-1 Claim under and as defined in the Plan
held by such holder, or, in the event of a transfer of a Note, held by a
predecessor holder, or an Allowed Subclass 7A-2 Claim under and as defined in
the Plan held by such holder, or, in the event of a transfer of a Note, held by
a predecessor holder, as applicable, bears to the aggregate amount of all
Allowed Subclass 7A-1 Claims or all Allowed Subclass 7A-2 Claims, as applicable
(including any applicable Contested Claim Reserve, as defined in the Plan).
"Pro-Rata Share" means, with respect to the holder of a Note, the
proportion that an Allowed Subclass 7A-1 Claim under and as defined in the Plan
held by such holder, or, in the event of a transfer of a Note, held by a
predecessor holder, or an Allowed Subclass 7A-2 Claim under and as defined in
the Plan held by such holder, or, in the event of a transfer of a Note, held by
a predecessor holder, bears to the aggregate amount of all Allowed Subclass
7A-1 Claims and Allowed Subclass 7A-2 Claims (including any Contested Claim
Reserve, as defined in the Plan).
"Regular Record Date" has the meaning specified in Section 2.3.
"Responsible Officers" of the Trustee means the Chairman of the Board
of Directors, every Vice Chairman of the Board of Directors, the President, the
Chairman or any Vice Chairman of the Executive Committee of the Board, the
Chairman of the Trust Committee, every Vice President, every Assistant Vice
President, the Cashier, every Assistant Cashier, the Secretary, every Assistant
Secretary, the Treasurer, every Assistant Treasurer, every Trust Officer, every
Assistant Trust Officer, the Controller, every Assistant Controller, and every
other officer and assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
any such officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such corporate trust matter is referred
because of his knowledge and familiarity with a particular subject.
"Special Record Date" for the payment of any Defaulted Payment means a
date fixed by the Trustee pursuant to Section 2.3.
"Stated Maturity," when used with respect to any Note, means the date
that is four years and eleven months after the Effective Date.
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"Subsidiary" means any corporation more than fifty percent (50%) of
whose shares of stock having general voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation irrespective
of whether or not at the time stock of any other class or classes shall or
might have voting power by reason of the happening of any contingency, is owned
or controlled directly or indirectly by the Company.
"supplemental indenture" or "indenture supplemental hereto" mean any
indenture hereafter duly authorized and entered into in accordance with the
provisions of this Indenture.
"Trustee" means IBJ Xxxxxxxx Bank & Trust Company, and, subject to the
provisions of the Indenture, shall also include any successor trustee.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as in force at the date of which this instrument was executed.
All accounting terms used in this Indenture shall have the meanings
assigned to them in accordance with generally accepted accounting principles
and practices employed at the time by the Company.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
SECTION 2.1 DESIGNATION, AMOUNT AND ISSUE OF NOTES. The Notes
shall be designated as set forth in the form of Note hereinabove recited.
Notes in the aggregate principal amount of up to $44,000,000 (and as otherwise
provided in Sections 2.8, 2.10 or 11.5), upon the execution of this Indenture,
or from time to time within 90 days thereafter, may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes to or upon the written order of
the Company, signed by its President or any Vice President, without any further
action by the Company hereunder. The Notes may be represented by one or more
Global Notes registered in the name of the Depositary.
SECTION 2.2 FORM OF NOTES. The Notes and the Trustee's
certificate of authentication to be borne by the Notes shall be substantially
in the form as in this Indenture hereinabove recited. Any of the Notes may
have imprinted thereon such legends or endorsements as the officers executing
the same may approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Notes may be listed or any Depositary, or to conform to usage. Each Global
Note authenticated and delivered hereunder shall bear a legend in substantially
the following form:
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THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
SECTION 2.3 DATES, PAYMENTS, AND RECORD DATES. The Notes shall
be issuable as registered Notes without coupons and shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Company executing the same may determine with the
approval of the Trustee.
The Notes shall be dated the date of authentication thereof by the
Trustee. The Company shall pay Payments, to the extent not previously paid
pursuant to and in accordance with the terms of the Notes and this Indenture,
on the Stated Maturity. Interest shall accrue on the unpaid Principal amount
of the Notes from the Payment Date to which Interest has been paid immediately
preceding the date of such Note (unless the date of such Note is a Payment Date
to which Interest has been paid, in which case from the date of such Note) or,
if no Interest has been paid on the Notes from the Original Issue Date of such
Note, from such Original Issue Date and shall be due and payable pursuant to
and in accordance with the terms of the Notes and this Indenture. Installments
of cash Payments shall be payable quarterly on the last business day of March,
June, September and December of the applicable year, commencing June 30, 1998
(each, a "Payment Date"), until the earlier of (a) such time as all of the
Payments have been paid in full or (b) the Stated Maturity. Each installment
of cash Payments on all of the then Outstanding Notes prior to the Stated
Maturity shall be in an amount equal to the Available Cash, if any, on the date
that is ten business days prior to the date of such installment and shall be
applied first to the payment of Interest on all of the then Outstanding Notes
and then to the payment of Principal of all of the then Outstanding Notes.
Notwithstanding the foregoing, in the event that the Available Cash on
the date that is ten business days prior to the date of such installment is
less than $300,000, the Company may elect not to make a quarterly installment
of cash Payments to the holders of the Notes on the date that such installment
would otherwise be due, and the Company may elect not to make any future
quarterly installment of cash Payments to the holders of the Notes until
additional Available Cash is received by the Company which, when aggregated
with existing Available Cash, would equal or exceed $300,000 as of the date
that is ten business days prior to the date of such installment (the "De
Minimis Exception").
The Company will pay on each Payment Date to each person in whose name
a Note is registered at the close of business on the Regular Record Date
preceding such Payment Date such person's Applicable Share of the Payments, if
any are due and payable to such
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person's subclass pursuant to and in accordance with the terms of the Notes and
this Indenture. The term "Regular Record Date" with respect to a regular
Payment Date for the Notes shall mean the close of business on the seventh day
of the month (whether or not a business day) in which such Payment Date occurs.
Any Payment on any Note which is payable pursuant to and in accordance with the
terms of the Notes and this Indenture, but is not punctually paid or duly
provided for, on any Payment Date (herein called "Defaulted Payment") shall
forthwith cease to be payable to the registered holder on the relevant Regular
Record Date by virtue of having been such holder; and such Defaulted Payment
may be paid by the Company, at its election in each case, as provided in clause
(A) or clause (B) below:
(A) The Company may elect to make payment of any
Defaulted Payment to the persons in whose names the Notes (or their
respective predecessor Notes) are registered at the close of business
on a special record date (the "Special Record Date") for the payment
of such Defaulted Payment, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Payment proposed to be paid on each Note and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Payment or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted
Payment as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Payment which
shall be not more than twenty (20) nor less than ten (10) days prior
to the date of the proposed payment and not less than thirty-five (35)
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Payment and the Special Record Date therefor to be mailed, first class
postage prepaid, to each Noteholder at his address as it appears in
the Note Register, not less than ten (10) days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at
the expense of the Company, cause a similar notice to be published at
least once in a Daily Newspaper in each place of payment, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Payment and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Payment shall be paid to the
persons in whose names the Notes (or their respective predecessor
Notes) are registered on such Special Record Date and shall no longer
be payable pursuant to the following clause (B).
(B) The Company may make payment of any Defaulted Payment
in any other lawful manner if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Note shall carry the rights to Payments accrued and unpaid, and to
accrue, which were carried by such other Note.
The Payments on the Notes shall be paid at the office or agency of the
Company which shall be located at the main office of the Trustee (the "place of
payment") in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, in Stock Option Shares (as defined in the Plan) with a value equal to
the Stock Option Value (as defined in the Plan), in UDC Warrants (as defined in
the Plan) with a value equal to the fair market value of the UDC Warrants on
the date of distribution of the UDC Warrants to the holders of the Notes as
determined by a national independent public accounting firm selected by the
Board of Directors of the Reorganized Company (the "Independent Appraiser") or
in shares of common stock of UDC issued or issuable upon exercise of the UDC
Warrants (the "UDC Warrant Shares") with a value equal to the Fair Market Value
of the UDC Warrant Shares on the date of distribution of the UDC Warrant Shares
to the holders of the Notes; provided, however, that Payments on any Notes may
be payable, at the option of the Company, by wire transfer of Federal funds or
by check, Stock Option Shares (as defined in the Plan), UDC Warrants (as defined
in the Plan) or UDC Warrant Shares mailed to the person entitled thereto as
such person's address shall appear on the Note Register.
SECTION 2.4 NUMBERS AND LEGENDS ON NOTES. Notes may bear such
numbers, letters or other marks of identification or designation, may be
endorsed with or have incorporated in the text thereof such legends or recitals
with respect to transferability or in respect of the Note or Notes for which
they are exchangeable, and may contain such provisions, specifications and
descriptive words, not inconsistent with the provisions of this Indenture, as
may be determined by the Company or as may be required to comply with any law
or with any rule or regulation made pursuant thereto.
SECTION 2.5 EXECUTION OF NOTES. Each Note shall be signed in the
name and on behalf of the Company by one of its officers. The signature of an
officer of the Company may, if permitted by law, be in the form of a facsimile
signature and may be imprinted or otherwise reproduced on the Notes. In case
any officer of the Company who shall have signed, or whose facsimile signature
shall be borne by, any of the Notes shall cease to be such officer of the
Company before the Notes so executed shall be actually authenticated and
delivered by the Trustee, such Notes shall nevertheless bind the Company and
may be authenticated and delivered as though the person whose signature appears
on such Notes had not ceased to be such officer of the Company.
SECTION 2.6 REGISTRATION OF TRANSFER OF NOTES. The Company shall
keep or cause to be kept at the main office of the Trustee books for the
registration of transfer of Notes issued hereunder (herein sometimes referred
to as the "Note Register") and upon
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presentation for such purpose at such office the Company will register or cause
to be registered the transfer therein, under such reasonable regulations as it
may prescribe, of such Notes. The Trustee is hereby appointed "Note Registrar"
for the purpose of registering Notes and transfers of Notes as herein provided.
The Company may appoint one or more "Note Co-Registrars" for such purpose as
the Board of Directors may determine where Notes may be presented or
surrendered for registration, registration of transfer or exchange and such
books, at all reasonable times, shall be open for inspection by the Trustee.
SECTION 2.7 EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES.
Whenever any Note shall be surrendered to the Company at an office or agency
referred to in Section 3.2, for registration of transfer or exchange, duly
endorsed or accompanied by a proper written instrument or instruments of
assignment and transfer thereof or for exchange in form satisfactory to the
Company and the Trustee, or any Note Registrar or Note Co-Registrar, duly
executed by the holder thereof or his attorney duly authorized in writing, the
Company shall execute, and the Trustee shall authenticate and deliver, in
exchange therefor, a Note or Notes in the name of the designated transferee, as
the case may require, with a Principal amount equal to the unpaid Principal
amount of the Note so exchanged and of such authorized denomination or
denominations as may be requested. All Notes issued upon any registration of
transfer or exchange of Notes shall be the valid obligations of the Company,
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
The Company, at its option, may require the payment of a sum
sufficient to reimburse it for any stamp tax or other governmental charge or
expense that may be imposed in connection with any exchange or transfer of
Notes other than exchanges pursuant to Section 2.8 or Section 11.5 not
involving any transfer. No service charge will be made for any such
transaction.
Upon delivery by any Note Co-Registrar of a Note in exchange for a
Note surrendered to it in accordance with the provisions of this Indenture, the
Note so delivered shall for all purposes of this Indenture be deemed to be duly
registered in the Note Register; provided, however, that in making any
determination as to the identity of persons who are holders, the Trustee shall,
subject to the provisions of Section 8.2, be fully protected in relying on the
Note Register kept at the main office of the Trustee.
Notwithstanding any other provision in this Indenture, no Global Note
may be exchanged in whole or in part for Notes registered, and no transfer of a
Global Note in whole or in part may be registered, in the name of any person
other than the Depositary for such Global Note or a nominee thereof unless (A)
such Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Note or (ii) has ceased to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, or (B)
there shall have occurred and be continuing an Event of Default with respect to
such Global Note.
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Subject to the immediately preceding paragraph, any exchange of a
Global Note for other Notes may be made in whole or in part, and all Notes
issued in exchange for a Global Note or any portion thereof shall be registered
in such names as the Depositary for such Global Notes shall direct.
Every Note authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Note or any portion thereof,
whether pursuant to this Section, Section 2.8, 2.10 or 11.5 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global Note,
unless such Note is registered in the name of a person other than the
Depositary for such Global Note or a nominee thereof.
SECTION 2.8 TEMPORARY NOTES. Pending the preparation of
definitive Notes the Company may execute and, upon Company Order, the Trustee
shall authenticate and deliver temporary Notes which may be printed,
lithographed, typewritten, mimeographed or otherwise reproduced. Temporary
Notes shall be issuable in any authorized denomination, and substantially of
the tenor of the definitive Notes in lieu of which they are issued, but with
such omissions, insertions and variations as may be appropriate for temporary
Notes, all as may be determined by the officers of the Company executing such
Notes as evidenced by their execution of such Notes. Every such temporary Note
shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Notes. If temporary Notes are issued, without unreasonable delay, the Company
will execute and deliver to the Trustee definitive Notes and thereupon any and
all temporary Notes may be surrendered in exchange therefor, at the offices
referred to in Section 3.2, and the Trustee shall authenticate and deliver in
exchange for such temporary Notes definitive Notes of authorized denominations
with an aggregate Principal amount equal to the aggregate unpaid Principal
amount of the temporary Notes so exchanged. Such exchange shall be made by the
Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes authenticated and delivered
hereunder.
SECTION 2.9 RECOGNITION OF REGISTERED HOLDERS OF DEFINITIVE NOTES
AND TEMPORARY NOTES. The Company, the Trustee or any agent of the Company or
the Trustee may deem and treat (A) the registered holder of any temporary Note,
and (B) the registered holder of any definitive Note, as the absolute owner of
such Note in accordance with Section 6.1.
SECTION 2.10 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. In case
any Note shall become mutilated or be destroyed, lost or stolen, then upon the
satisfaction of the conditions hereinafter set forth in this Section 2.10 the
Company (A) shall, in the case of any mutilated Note, and (B) shall, in the
case of any destroyed, lost or stolen Note, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, execute, and upon the written request of the Company, the Trustee
shall authenticate and deliver, a new Note bearing a number not
contemporaneously outstanding with a Principal amount equal to the unpaid
Principal amount of the mutilated Note or the
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Note so destroyed, lost or stolen in exchange (or in lieu of, as applicable)
and substitution for such Note; provided, however, that if any such mutilated,
destroyed, lost or stolen Note shall have become or shall be about to become
due and payable, the Company may instead of issuing a substituted Note, pay
such Note without requiring the surrender thereof, except that such mutilated
Note shall be surrendered. The applicant for such substituted Note shall
furnish to the Company and to the Trustee evidence satisfactory to them, in
their discretion, of the ownership of and the destruction, loss or theft of
such Note and shall furnish to the Company and to the Trustee and any Note
Registrar such security or indemnity as may be required by them to save each of
them harmless, and, if required, shall reimburse the Company for all expenses
(including any tax or other governmental charge and the fees and expenses of
the Trustee) in connection with the preparation, authentication and delivery of
such substituted Note, and shall comply with such other reasonable regulations
as the Company, the Trustee, or either of them, may prescribe.
Every new Note issued pursuant to this Section 2.10 in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionally with any and
all other Notes duly issued hereunder.
The provisions of this Section 2.10 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 Notes.
SECTION 2.11 FORM AND AUTHENTICATION OF NOTES. Subject to the
qualifications hereinbefore set forth, the Notes shall be substantially of the
tenor and effect set forth in the recitals hereto, and no Notes shall be
entitled to the benefit hereof, or shall be or become valid or obligatory for
any purpose unless there shall be endorsed thereon an authentication
certificate, substantially in the form set forth in the recitals hereto,
executed by the Trustee; and such certificate on any Note issued by the Company
shall be conclusive evidence and the only competent evidence that it has been
duly authenticated and delivered hereunder.
SECTION 2.12 SURRENDER AND CANCELLATION OF NOTES. All Notes
surrendered for payment, transfer or exchange shall, if surrendered to any
person other than the Trustee, be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder, which the Company may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly canceled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any
Notes canceled as provided in this Section 2.12, except as expressly permitted
by this Indenture.
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ARTICLE 3
PARTICULAR COVENANTS OF THE COMPANY
Anything in this Indenture or in any Note to the contrary
notwithstanding, the Company, expressly for the equal and ratable benefit of
the original and future holders of the Notes, covenants and agrees as follows:
SECTION 3.1 WILL PUNCTUALLY PAY THE PAYMENTS ON THE NOTES. The
Company will duly and punctually pay, or cause to be paid, installments of the
Payments on each Payment Date to the extent of the Available Cash, if any, of
the Company as of such date, subject to the De Minimis Exception, pursuant to
and in accordance with the terms of the Notes and this Indenture.
SECTION 3.2
(A) OFFICE OR AGENCY. The main office of the Trustee
shall serve as the place where Notes may be presented or surrendered
for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be served. The
Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands, and the Trustee agrees
to promptly forward all such presentations, surrenders, notices and
demands to the Company at the address set forth in Section 13.7
hereof.
(B) APPOINTMENT OF TRUSTEE AS PAYING AGENT; DUTY OF
PAYING AGENT OTHER THAN TRUSTEE. The Company hereby appoints the
Trustee as paying agent and the Company covenants that, if it shall
appoint a paying agent other than the Trustee, it will cause such
paying agent to execute and deliver to the Trustee an instrument in
which such paying agent shall agree with the Trustee, subject to the
provisions of this Section 3.2,
(1) that such paying agent shall hold all sums held
by it as such agent for the payment of the Payments on any of
the Notes in trust for the benefit of the holders of such
Notes or the Trustee;
(2) that such paying agent shall give the Trustee
notice of any Default of the Company in making any Payments on
the Notes, if any are due and payable pursuant to and in
accordance with the terms of the Notes and this Indenture; and
(3) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith to
pay to the Trustee all sums so held in trust by such paying
agent.
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(C) DUTY OF COMPANY ACTING AS PAYING AGENT. The Company
covenants and agrees that, if it should at any time act as its own
paying agent, it will, on or before each due date of Payments on the
Notes, if any are due and payable pursuant to and in accordance with
the terms of the Notes and this Indenture, set aside and segregate and
hold in trust for the benefit of the holders of the Notes a sum
sufficient to pay such Payments so becoming due until such sums shall
be paid to such holders or otherwise disposed of as herein provided
and will notify the Trustee of its action or of any failure to take
such action.
Whenever the Company shall have one or more paying agents, it
will, prior to each due date of the Payments on any Notes, if any are
due and payable pursuant to and in accordance with the terms of the
Notes and this Indenture, deposit with one or more paying agents a sum
sufficient to pay the Payments, so becoming due, such sum to be held
in trust for the benefit of the holders of Notes entitled to such
Payments, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
(D) DELIVERY TO TRUSTEE. Anything in this Section 3.2 to
the contrary notwithstanding, the Company may at any time, for the
purposes of obtaining the satisfaction and discharge of this Indenture
or for any other reason, pay, or by Company Order direct any paying
agent to pay, to the Trustee all sums held in trust by the Company or
any paying agent as required by this Section 3.2, such sums to be held
by the Trustee upon the trusts contained in this Indenture. Upon such
payment by any paying agent to the Trustee, such paying agent shall be
released from all further liability with respect to such money.
(E) ALL SUMS TO BE HELD SUBJECT TO SECTION 13.2.
Anything in this Section 3.2 to the contrary notwithstanding, the
holding of sums in trust as provided in this Section 3.2 is subject to
the provisions of Section 13.2 hereof.
SECTION 3.3 COMPLIANCE WITH THE PLAN. The Company will observe,
perform and discharge in accordance with their terms all of the material
covenants, conditions and obligations which are imposed on it by the Plan. The
Company will notify the Trustee of any breach of the covenants contained in
this Section 3.3 within ten (10) days after the Company has knowledge of such
breach.
SECTION 3.4 WILL KEEP, AND PERMIT EXAMINATION OF, RECORDS AND
BOOKS OF ACCOUNT AND WILL PERMIT VISITATION OF PROPERTY. The Company will (A)
keep proper records and books of account in accordance with generally accepted
accounting principles consistently applied, reflecting all financial
transactions of the Company and each Subsidiary, and (B) permit or cause to
permit the Trustee, personally or by its agents, accountants and attorneys, to
visit or inspect any of the properties, examine the records and books of
account and discuss the affairs, finances and accounts, of the Company and each
Subsidiary, with the officers of the Company and Subsidiaries at such
reasonable times as may be requested by
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the Trustee. The Trustee shall be under no duty to make any such visit,
inspection or examination.
The Company covenants that books of record and account will be kept in
which full, true and correct entries will be made of all dealings or
transactions of, or in relation to, the properties, business and affairs of the
Company.
SECTION 3.5 PAYMENT OF TAXES AND OTHER CLAIMS. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (ii) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
SECTION 3.6 RESTRICTIONS ON INDEBTEDNESS. The Company covenants
that it will not, nor will it permit any Subsidiary to, incur, create, assume
or otherwise become liable with respect to any Indebtedness other than
Indebtedness contemplated by the Plan (including Indebtedness incurred pursuant
to the DIP Financing and Overadvance Facility, as defined in the Plan).
SECTION 3.7 COMPLIANCE NOTICES. The Company will deliver to the
Trustee, within thirty (30) days after the end of each of its fiscal quarters,
commencing with the quarter ending June 30, 1998, an Officer's Certificate
stating that
(1) review of the activities of the Company during such
quarter and of performance under this Indenture has been made under
his supervision; and
(2) to the best of his knowledge, based on such review,
the Company has fulfilled all its obligations under this Indenture
throughout the quarter, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof.
SECTION 3.8 CORPORATE EXISTENCE. Until the first to occur of (a)
such time as all of the Payments have been paid in full, or (b) the Stated
Maturity, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
rights (charter and statutory) and franchises of the Company; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries considered as a whole and
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that the loss thereof is not disadvantageous in any material respect to the
holders of the Notes.
ARTICLE 4
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 4.1 NOTEHOLDER LISTS, ETC.
(A) The Company will furnish or cause to be furnished to
the Trustee, quarterly, not more than fifteen (15) days after each
Regular Record Date a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of Notes as of such
Regular Record Date, and at such other times, as the Trustee may
request in writing, within thirty (30) days after receipt by the
Company of any such request, a list of similar form and content as of
a date not more than fifteen (15) days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole
Note Registrar, no such list shall be required to be furnished.
(B) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the holders of
Notes received by the Trustee in its capacity as Note Registrar
contained in the most recent list furnished to it as provided in
subdivision (A) of this Section 4.1. The Trustee may destroy any list
furnished to it as provided in subdivision (A) of this Section 4.1,
upon receipt of a new list so furnished.
(C) In case three or more holders of Notes or one or more
holders of not less than twenty-five percent (25%) of the aggregate
Principal amount of all then Outstanding Notes (hereinafter called
"Applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such Applicant has owned a Note for
a period of at least six (6) months preceding the date of such
application, and such application states the Applicants' desire to
communicate with other holders of Notes with respect to their rights
under this Indenture or under the Notes, and is accompanied by a copy
of the form of proxy or other communication which such Applicants
propose to transmit, then the Trustee shall, within five (5) business
days after the receipt of such application, at its election, either
(1) afford to such Applicants access to the
information preserved at the time by the Trustee in accordance
with the provisions of subdivision (B) of this Section 4.1; or
(2) inform such Applicants as to the approximate
number of holders of Notes whose names and addresses appear in
the information preserved at
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the time by the Trustee, in accordance with the provisions of
subdivision (B) of this Section 4.1, and as to the approximate
cost of mailing to such Noteholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such Applicants access to
such information, the Trustee shall, upon the written request of such
Applicants, mail to each Noteholder whose name and address appears in
the information preserved at the time by the Trustee in accordance
with the provisions of subdivision (B) of this Section 4.1, 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 of payment or provision for the payment
of the reasonable expenses of mailing, unless within five (5) days
after such tender the Trustee shall mail to such Applicants and file
with the Securities and Exchange Commission together with a copy of
the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best
interests of the holders of Notes, or would be in violation of
applicable law. Such written statement shall specify the basis of
such opinion. If said Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one (1) or more of such objections,
said Commission shall find, after notice and opportunity for a
hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of such
material to all such Noteholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such Applicants
respecting their application.
(D) Every holder of the Notes, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee, nor any paying agent shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Notes in accordance with the
provisions of subdivision (C) of this Section 4.1, 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 said subdivision (C).
SECTION 4.2 REPORTS BY COMPANY. The Company covenants and
agrees:
(A) To file with the Trustee within fifteen (15) days
after the Company files the same with the Securities and Exchange
Commission, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the
foregoing as such Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with
such Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of
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1934; or, if the Company is not required to file information,
documents, or reports pursuant to either of such Sections, then the
Company will file with the Trustee and the Securities and Exchange
Commission, in accordance with rules and regulations prescribed from
time to time by said Commission, such of the supplementary and
periodic information, documents, and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 as may
be prescribed from time to time in such rules and regulations;
(B) To file with the Trustee and the Securities and
Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations, including, in the case of annual reports, if required by
such rules and regulations, certificates or opinions of independent
public accountants, conforming to the requirements, if any, of Section
13.3 hereof, as to compliance with conditions or covenants, compliance
with which is subject to verification by accountants;
(C) To transmit to the holders of the Notes, in the
manner and to the extent provided in subsection (c) of section 313 of
the TIA, such summaries of any information, documents, and reports
required to be filed by the Company pursuant to subdivision (A) or
subdivision (B) as may be required by the rules and regulations
promulgated by the Securities and Exchange Commission; and
(D) To furnish to the Trustee with or as a part of each
annual report and each other document or report filed with the Trustee
pursuant to subdivision (A), (B) or (C) of this Section 4.2, an
Officers' Certificate stating that in the opinion of each of the
signers such annual report or other document or report complies with
the requirements of such subdivision (A) or subdivision (B).
Each certificate furnished to the Trustee pursuant to the provisions
of this Section 4.2 shall conform to the requirements of Section 13.3 hereof.
SECTION 4.3 REPORTS BY TRUSTEE. The Trustee shall transmit to
the Noteholders as provided in TIA Section 313(c), if required thereunder,
within sixty (60) days after May 15, 1999 and each May 15 thereafter, a brief
report as provided in TIA Section 313(a). A copy of each such report shall, at
the time of such transmission to the Noteholders, be filed by the Trustee with
the Securities and Exchange Commission.
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ARTICLE 5
REMEDIES OF TRUSTEE AND NOTEHOLDERS UPON DEFAULT
SECTION 5.1 DEFINITION OF DEFAULT AND EVENT OF DEFAULT. The
following events are hereby defined for all purposes of this Indenture (except
where the term is otherwise defined for specific purposes) as "Events of
Default" (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) Failure to make any payment of Principal of or
Interest upon any Note for a period of five (5) days or more after the
same shall become due and payable pursuant to and in accordance with
the terms of the Notes and this Indenture; or
(B) The occurrence of any default in the performance, or
any breach, of any covenant of the Company in this Indenture (other
than a default that is covered by any other subsection of this Section
5.1), which continues for a period of not less than thirty (30)
consecutive days after written notice of such occurrence is given to
the Company by the Trustee or holders of not less than twenty-five
percent (25%) in Principal amount of all then Outstanding Notes; or
(C) The occurrence of any material default in the
performance, or any material breach, of any covenant of the Company in
the Plan, which continues for a period of not less than thirty (30)
consecutive days after written notice of such occurrence is given to
the Company by the Trustee or holders of not less than twenty-five
percent (25%) in Principal amount of all then Outstanding Notes; or
(D) The Company's Case (as defined in the Plan) shall be
converted to a case under Chapter 7 of Title 11 of the United States
Code; or
(E) The Company shall file a voluntary petition under 11
U.S.C. Section 301; provided however, that the continuation of the
Company's Case (as defined in the Plan) shall not be an Event of
Default under this subsection; or
(F) An order for relief shall be entered against the
Company under 11 U.S.C. Section 303(h); or
(G) A court having jurisdiction in the premises shall
have entered a final non-appealable judgment, order or decree for
payment of money against the Company that does not violate or conflict
with the terms of the Plan and that results in a liability (after
provision for any proceeds of any policy of insurance applicable to
such liability) in excess of $400,000.
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SECTION 5.2 TRUSTEE TO GIVE NOTEHOLDERS NOTICE OF DEFAULTS. The
Trustee shall, within sixty (60) days after the occurrence of any event that
with the giving of notice, the passage of time or both would constitute an
Event of Default (a "Default"), give by mail to (i) all Noteholders, as their
names and addresses appear in the Note Register, (ii) to such holders of the
Notes as have, within the two (2) years preceding the mailing of notice, filed
their names and addresses with the Trustee for that purpose and (iii) to such
holders of the Notes whose names and addresses are provided the Trustee in
accordance with Section 312 of the TIA, notice of all Defaults known to the
Trustee, unless such Defaults shall have been cured or waived before the giving
of such notice; provided, however, that except in the case of Default in the
payment of Payments on any of the Notes, if any are due and payable pursuant to
and in accordance with the terms of the Notes and this Indenture, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, board of trustees, executive committee, or a trust committee of
directors, trustees or Responsible Officers, of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Noteholders.
SECTION 5.3 DECLARATION OF PRINCIPAL AND ACCRUED INTEREST DUE
UPON DEFAULT; HOLDERS OF SPECIFIED PERCENTAGE OF NOTES MAY WAIVE DEFAULT
DECLARATION. In the event that an Event of Default has occurred, then the
Trustee may, at its election, and shall, upon the written direction of the
holders of not less than twenty-five percent (25%) of the aggregate Principal
amount of the Outstanding Notes, by written notice to the Company, declare the
entire unpaid Principal amount of all of the Notes and all accrued Interest
thereon to be immediately due and payable in full, and such Principal and
Interest shall thereupon become and be immediately due and payable in full.
Notwithstanding the foregoing, any acceleration of the Notes pursuant to this
Section 5.3 shall be subject to the right of the holders of not less than a
majority in Principal amount of all Outstanding Notes, by written notice to the
Company and to the Trustee, thereafter to consent to a waiver of such past
Default before any final judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided and if before such
judgment or decree all covenants with respect to which Default shall have been
made shall be fully performed or made good to the reasonable satisfaction of
the Trustee, and all arrears of Interest at the Interest rate per annum
applicable to the Notes and the Principal of all Outstanding Notes which shall
have become due otherwise than by acceleration under this Section 5.3 and all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
disbursements, expenses and advances of the Trustee, its agents and attorneys,
except the Principal of any Notes not then due by their terms and except
Interest accrued on such Notes since the last Payment Date, shall be paid, or
the amount thereof shall be paid to the Trustee for the benefit of those
entitled thereto; in which event, such Default and its consequences shall
thereupon be deemed to have been cured and such declaration of the maturity of
the Notes shall be void and of no further effect, but no such cure shall extend
to or affect any subsequent Default or impair any right consequent thereon.
SECTION 5.4 POWER OF TRUSTEE TO PROTECT AND ENFORCE RIGHTS. Upon
the occurrence of one or more Events of Default and the acceleration of the
indebtedness
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evidenced by the Notes, the Trustee by such officer or agent as it may appoint
in its discretion, with or without entry, may proceed to protect and enforce
its rights and the rights of holders of the Outstanding Notes by a suit or
suits in equity or an action or actions at law, whether for the specific
performance of any covenant or agreement contained herein, or in aid of the
execution of any power herein granted, or for the enforcement of any other
appropriate legal or equitable remedy, as the Trustee shall deem most effectual
to protect and enforce any of its rights or duties and the rights of holders of
the Outstanding Notes.
Upon the written request of the holders of a majority in Principal
amount of the then Outstanding Notes, in case an Event of Default shall have
occurred and the indebtedness evidenced by the Notes shall be accelerated as
aforesaid, subject to Sections 8.2 and 8.5, it shall be the duty of the Trustee
upon being indemnified as provided in Section 5.10, to exercise such one or
more of the remedies available for the protection and enforcement of its rights
and the rights of the Noteholders (including the taking of appropriate judicial
proceedings by action, suit or otherwise) as the Trustee shall deem best.
SECTION 5.5 REMEDIES CUMULATIVE. No remedy herein conferred upon
or reserved to the Trustee or the Noteholders is intended to be exclusive of
any other right or remedy, but each and every such right or remedy shall be
cumulative, and shall be in addition to every other remedy given hereunder as
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.
(A) DELAY, ETC. NOT A WAIVER OF RIGHTS. No delay or
omission to exercise any right or power accruing upon any Event of
Default shall impair any such right or power or shall be construed to
be a waiver of any such Event of Default or an acquiescence therein;
and every such right and power may be exercised from time to time and
as often as may be deemed expedient.
(B) WAIVER OF DEFAULT NOT TO EXTEND TO SUBSEQUENT
DEFAULTS. No waiver of any Event of Default whether by the Trustee or
by the Noteholders, shall extend to or shall affect any subsequent
Event of Default or shall impair any rights or remedies consequent
thereon.
SECTION 5.6 HOLDERS OF SPECIFIED PERCENTAGE OF NOTES MAY DIRECT
JUDICIAL PROCEEDINGS BY TRUSTEE. The holders of not less than a majority in
Principal amount of the Notes at the time Outstanding hereunder may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any power conferred upon the Trustee; provided,
however, that such direction shall not be otherwise than in accordance with the
provisions of law and this Indenture and the Trustee may take any other action
deemed proper by them, or either of them, which is not inconsistent with such
direction.
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SECTION 5.7
(A) PAYMENT OF PRINCIPAL AND INTEREST TO TRUSTEE UPON
OCCURRENCE OF CERTAIN DEFAULTS; JUDGMENT MAY BE TAKEN BY TRUSTEE. The
Company covenants that if an Event of Default specified in
subdivisions (A) or (B) of Section 5.1 shall occur, then upon demand
of the Trustee, the Company will pay to the Trustee, for the benefit
of the holders of the Notes, the whole amount that then shall have
become due and payable on all such Notes for Principal and Interest,
and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements, and advances of the
Trustee, its agents and counsel.
In case the Company shall fail to pay the same forthwith upon
such demand, the Trustee, in its name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any
other obligor upon the Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever
situated.
(B) ENFORCEMENT OF RIGHTS BY TRUSTEE DURING CONTINUANCE
OF AN EVENT OF DEFAULT. If an Event of Default occurs and is
continuing, the Trustee, may in the exercise of discretion proceed to
protect and enforce its rights and the rights of the Noteholders by
such appropriate judicial proceedings as deemed 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 to enforce any other
proper remedy.
(C) APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any
moneys collected by the Trustee under this Section 5.7 shall be
applied by the Trustee:
FIRST. To the payment of the costs and expenses reasonably
incurred (including any sums due the Trustee) in the proceedings
resulting in the collection of such moneys.
SECOND. To the payment of the amounts then due and unpaid
upon the Outstanding Notes for Interest on the Outstanding Notes, and
in case such proceeds shall be insufficient to pay in full the amounts
so due and unpaid, then to the payment thereof ratably, according to
the aggregate of such Interest, without preference or priority as to
any Outstanding Note over any other Outstanding Note or of any
installment of Interest over any other installment of Interest.
THIRD. To the payment of the amounts then due and unpaid upon
the Outstanding Notes for Principal on the Outstanding Notes, and in
case such proceeds
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shall be insufficient to pay in full the amounts so due and unpaid,
then to the payment thereof ratably, according to the aggregate of
such Principal, without preference or priority as to any Outstanding
Note over any other Outstanding Note or of any installment of
Principal over any other installment of Principal, upon presentation
of such Notes and their surrender if fully paid, or for proper
notation if only partially paid.
SECTION 5.8 POSSESSION OF NOTES UNNECESSARY IN ACTION BY TRUSTEE.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee, without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee, shall be brought in its name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the holders of the Outstanding Notes in respect of which
such judgment has been recovered.
SECTION 5.9 TRUSTEE MAY FILE NECESSARY PROOFS. The Trustee
(irrespective of whether the Principal of the Notes shall then be due and
payable as therein expressed and irrespective of whether the Trustee shall have
made any demand for such payment) may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee, and of the Noteholders allowed in any judicial
proceedings relative to the Company or its creditors or property. In case of
any receivership, insolvency, bankruptcy, reorganization or other similar
proceedings affecting the Company or its property, the Trustee (irrespective of
whether the Principal of the Notes shall then be due and payable and
irrespective of whether the Trustee shall have made any demand for such
payment) shall be entitled and empowered either in its name or as trustee of an
express trust or as attorney in fact for the holders of the Notes, or in any
one or more of such capacities, to file a proof of claim for the whole amount
of unpaid Principal and Interest 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) and of the Noteholders
allowed in any such proceedings and to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Noteholder 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
Noteholders, to pay to the Trustee, any amount due the Trustee, for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee, under Section
8.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any holder
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thereof, or to authorize the Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.
SECTION 5.10 LIMITATION UPON RIGHT OF NOTEHOLDERS TO INSTITUTE
CERTAIN LEGAL PROCEEDINGS. No Noteholder shall have any right to institute any
suit, action or proceeding in equity or at law for the foreclosure of this
Indenture, or for the execution of any trust hereunder, including the
appointment of a receiver or trustee, or for any other remedy hereunder,
including without limitation the institution of nonjudicial foreclosure
proceedings, unless (A) such holder previously shall have delivered to the
Trustee written notice that one or more Events of Default, which Events of
Default shall be specified in such notice, has occurred and is continuing, and
(B) the holders of not less than twenty-five percent (25%) in Principal amount
of the then Outstanding Notes shall have requested the Trustee in writing and
shall have afforded to it reasonable opportunity either to proceed to exercise
the powers hereinbefore granted, or to institute such action, suit or
proceeding in its own name, and (C) one or more Noteholders shall have offered
to the Trustee adequate security and indemnity, satisfactory to it, against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee shall have refused or neglected to act on such notification, request
and offer of indemnity for at least sixty (60) days and no direction
inconsistent with such notification shall have been given to the Trustee by
holders of not less than a majority in Principal amount of the Outstanding
Notes; and such notification, request and offer of indemnity are hereby
declared, in every such case, at the option of the Trustee, to be conditions
precedent to the exercise of the powers and trusts of this Indenture and to any
action or cause of action for foreclosure or for any other remedy hereunder; it
being understood and intended that no Noteholder shall have any right in any
manner whatsoever by his action to affect, disturb or prejudice the rights of
any other holder, or obtain or seek to obtain priority or preference over any
other holder, or to enforce any right hereunder, except in the manner herein
provided to the extent permitted by law, and that all proceedings at law or in
equity shall be instituted, had or maintained in the manner herein provided,
and for the equal and ratable benefit of all holders of the Outstanding Notes.
SECTION 5.11 RIGHT OF NOTEHOLDER TO RECEIVE AND ENFORCE PAYMENT
NOTE IMPAIRED. Notwithstanding any other provision of this Indenture, the
right of any holder of any Note to receive Payments on such Note, on or after
such amounts have become due and payable pursuant to and in accordance with the
terms of the Notes and this Indenture, or to institute suit for the enforcement
of any such payment on or after such amounts have become due and payable
pursuant to and in accordance with the terms of the Notes and this Indenture,
shall not be impaired or affected without the consent of such holder, except
that no Noteholder may institute any such suit if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would,
under applicable law, result in the surrender, impairment, waiver, or loss
under this Indenture upon any property subject hereto.
SECTION 5.12 COURT MAY REQUIRE UNDERTAKING TO PAY COSTS. All
parties to this Indenture agree, and each holder of any Note by his acceptance
thereof shall be deemed
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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 or omitted by it, the filing by any
party litigant in such suit of any 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; but to the extent permitted by law the provisions of this
Section 5.12 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Noteholder or group of Noteholders holding in the aggregate
more than ten percent (10%) in aggregate Principal amount of the Outstanding
Notes, or to any suit instituted by any Noteholder for the enforcement of the
payment of Payments on any Note on or after such amounts have become due and
payable pursuant to and in accordance with the terms of the Notes and this
Indenture.
SECTION 5.13 UNENFORCEABLE PROVISION INOPERATIVE. To the extent
that any provision of this Article 5 may be invalid or unenforceable under any
applicable law, such provision shall be deemed inoperative and inapplicable and
shall not be included in the terms of this Indenture.
SECTION 5.14 IF ENFORCEMENT PROCEEDINGS ABANDONED, STATUS QUO IS
ESTABLISHED. In case the Trustee or any Noteholder shall have proceeded to
enforce any right or remedy under this Indenture, and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Noteholder, then and in every
such case the Company, the Trustee and the Noteholders, subject to any
determination in such proceedings, shall be restored severally and respectively
to their former positions and rights hereunder, and thereafter all rights,
remedies and powers of the Trustee and Noteholders shall continue as if no such
proceedings had been instituted.
SECTION 5.15 NOTEHOLDERS MAY WAIVE CERTAIN DEFAULTS. The holders
of not less than a majority of the aggregate Principal amount of the then
Outstanding Notes may on behalf of the holders of all the Notes waive any past
Default hereunder and its consequences, except a Default:
(A) in the payment of the Payments on any Note, if any
are due and payable pursuant to and in accordance with the terms of
the Notes and this Indenture, or
(B) in respect of a covenant or provision hereof which
under Article 11 cannot be modified or amended without the consent of
the holder of each Outstanding Note affected.
Upon any such Waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
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ARTICLE 6
EVIDENCE OF RIGHTS OF NOTEHOLDERS
AND OWNERSHIP OF NOTES
SECTION 6.1 EVIDENCE OF OWNERSHIP OF DEFINITIVE NOTES AND
TEMPORARY NOTES ISSUED HEREUNDER IN REGISTERED FORM. Prior to due presentment
for registration of transfer of any Note, the Company, the Trustee, any Note
Registrar, or any agent of the Company or the Trustee may deem and treat the
person in whose name any note shall be registered at any given time upon the
Note Register as the absolute owner of such Note for the purpose of receiving
any payment of, or on account of, the Payments on such Note, if any are due and
payable pursuant to and in accordance with the terms of the Notes and this
Indenture, and for all other purposes whether or not such Note be overdue; and
neither the Company nor the Trustee, nor any agent of the Company or the
Trustee shall be bound by any notice to the contrary. All such payments made
in accordance with the provisions of this Section 6.1 shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Note.
ARTICLE 7
CONSOLIDATION, MERGER AND SALE
SECTION 7.1 COMPANY MAY MERGE, CONSOLIDATE, ETC., UPON CERTAIN
TERMS. The Company covenants that it will not merge or consolidate with any
other corporation or, other than as part of a loan securitization or sale
entered into in the ordinary course of its business, sell or convey all or
substantially all of its assets to any person, firm or corporation, unless (i)
either the Company shall be the continuing or surviving corporation, or the
successor corporation (if other than the Company) shall be a corporation
organized under the laws of the United States of America or any State thereof
and shall expressly assume the due and punctual payment of the Payments on all
the Notes, if any are due and payable pursuant to and in accordance with the
terms of the Notes and this Indenture, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Company, by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, and (ii) the Company or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition.
SECTION 7.2 SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case of
any such consolidation, merger, sale or conveyance, and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the Company, and the Company shall thereupon be
released from all obligations hereunder and under the Notes and the Company as
the predecessor corporation may thereupon or at any time thereafter be
dissolved, wound
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up or liquidated. Such successor corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company any or all
of the Notes issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Notes which previously shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any Notes
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
SECTION 7.3 OPINION OF COUNSEL. The Trustee, subject to TIA
Section 315(a), (c) and (d) and to Section 8.5, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance and any such assumption complies with the provisions of this Article
7.
ARTICLE 8
CONCERNING THE TRUSTEE
SECTION 8.1 REQUIREMENT OF CORPORATE TRUSTEE, ELIGIBILITY. There
shall at all times be a Trustee hereunder which shall be a banking corporation
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $60,000,000 subject to
supervision or examination by Federal or State authority, or any affiliate of
such a banking corporation, which also is a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $10,000,000 subject to supervision or
examination by Federal or State authority. 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 8.1 the combined capital and surplus of the Trustee 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 8.1, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article 8.
SECTION 8.2 ACCEPTANCE OF TRUST. The Trustee accepts the trusts
hereby created upon the terms and conditions in this Indenture specified, to
all of which the Company and the holders of Outstanding Notes by their
acceptance thereof agree:
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(A) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee, and;
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to it, and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
(B) In case 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.
(C) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that
(1) this subdivision shall not be construed to limit
the effect of subdivision (A) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it
shall be proved that the Trustee was negligent in ascertaining
pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than
a majority in Principal amount of the Notes at the time
Outstanding relating to the time, method, and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture;
(4) none of the provisions contained in 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 there is reasonable ground
for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it; and
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(5) the permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty,
and the Trustee shall not be answerable for other than its
negligence or willful default.
(D) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
(E) The Trustee shall not be required to take notice or
be deemed to have notice of any Event of Default hereunder except
failure by the Company to cause to be made any of the payments to the
Trustee required to be made to the Trustee by any provision hereof or
failure by the Company to file with the Trustee any document required
by this Indenture to be so filed subsequent to the issuance of the
Notes, unless the Trustee shall be specifically notified in writing of
such Default by the Company or by the holders of at least twenty- five
percent (25%) in aggregate Principal amount of Outstanding Notes, and
all notices or other instruments required by this Indenture to be
delivered to the Trustee must, in order to be effective, be delivered
at the main office of the Trustee, and in the absence of such notice
so delivered the Trustee may conclusively assume there is no Event of
Default except as aforesaid.
SECTION 8.3 DISCLAIMER. The recitals contained herein and in the
Notes (except as contained in the Trustee's certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes issued hereunder. The Trustee shall be under no responsibility or duty
with respect to the disposition of any Notes authenticated and delivered
hereunder or the application or use of the proceeds thereof or the application
or use of any moneys paid to the Company under any of the provisions hereof.
SECTION 8.4 TRUSTEE MAY OWN NOTES. The Trustee, the paying
agent, the Note Registrar or any Note Co- Registrar or other agent of the
Company or of the Trustee may become the owner or pledgee of Notes and, subject
to Sections 8.9 and 8.10, if operative, may otherwise deal with the Company
with the same rights it would have if it were not a Trustee, paying agent, Note
Registrar, Note Co-Registrar or other agent of the Company or of the Trustee.
SECTION 8.5 TRUSTEE MAY RELY ON CERTIFICATES, ETC. To the extent
permitted by Section 8.2 hereof:
(A) The Trustee may rely and shall be protected in acting
upon any resolution, certificate, opinion, notice, request, consent,
order, appraisal, report, 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;
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(B) The Trustee may consult with counsel, who may be
counsel to the Company, and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder
in good faith and in reliance thereon;
(C) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Certified Resolution;
(D) 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 be herein specifically prescribed) may,
in the absence of bad faith, rely upon an Officers' Certificate;
(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 holders pursuant to this Indenture,
unless such holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred, as the case may be, 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 such document
set forth in Section 8.5(A), but the Trustee, in its exercise of
discretion, may make such further inquiry or investigation into such
facts or matters as may seem necessary, and, if the Trustee shall
determine to make such further inquiry or investigation, the Trustee
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(G) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care hereunder; and
(H) The Trustee shall not be required to give any
debenture or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
SECTION 8.6 MONEY HELD IN TRUST NOT REQUIRED TO BE SEGREGATED.
Subject to the provisions of Section 13.2 hereof, all moneys received by the
Trustee hereunder or in respect of the Notes shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by law.
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Any interest allowed on or income or other return arising from any
such moneys shall be paid from time to time to the Company upon Company Order
in accordance with the provisions hereof; provided, however, that no such
interest, income or return shall be paid to the Company during any period
during which an Event of Default has occurred and is continuing.
SECTION 8.7 COMPENSATION, REIMBURSEMENT, INDEMNITY, SECURITY.
The Company covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to receive, reasonable compensation for all
services rendered by it in the execution of the trusts hereby created and in
the exercise and performance of all services rendered hereunder, which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust, and except as otherwise
expressly provided herein, the Company will upon request of the Trustee
reimburse the Trustee for all reasonable advances made or incurred 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 or disbursement as may be attributable to
negligence or bad faith). The Company also covenants and agrees to indemnify
the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Trustee
arising out of or in connection with the acceptance or administration of this
trust, including, without limitation, all costs and expenses incurred in
defending against any claim or liability in connection with the exercise or
performance of any of the powers or duties hereunder.
If, and to the extent that the Trustee and its counsel and other
agents do not receive compensation for services rendered, reimbursements of its
advances, expenses and disbursements, or indemnity, as herein provided, as the
result of allowances made in any reorganization, bankruptcy, receivership,
liquidation or other proceeding or by any plan of reorganization or
readjustment of obligations of the Company or the Trustee shall be entitled, in
priority to the holders of the Notes, to be paid from the proceeds of any
distributions of any securities, dividends or other disbursements which would
otherwise be made to the holders of Notes in any such proceeding or proceedings
and the Trustee is hereby constituted and appointed, irrevocably, the attorney
in fact for the holders of the Notes and each of them to collect and receive,
in their name, place and xxxxx, such distributions, dividends or other
disbursements, to deduct therefrom the amounts due to the Trustee, its counsel
and other agents on account of services rendered, advances, expenses, and
disbursements made or incurred, or indemnity, and to pay and distribute the
balance, pro rata, to the holders of the Notes.
SECTION 8.8 CONFLICT OF INTEREST.
(A) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section 8.8, the Trustee shall within
ninety (90) days after ascertaining that there is such conflicting
interest, either eliminate such conflicting interest or resign in the
manner and with the effect hereinafter specified in this Article 8.
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(B) In the event that the Trustee shall fail to comply
with the provisions of the preceding subdivision (A) of this Section
8.8, the Trustee shall within ten (10) days after the expiration of
such ninety (90) day period transmit notice of such failure to the
Noteholders, in the manner and to the extent provided in Section 4.3.
(C) For the purposes of this Section, the Trustee shall
be deemed to have a conflicting interest if there is an Event of
Default (as defined in Section 5.1 but exclusive of any grace period
or notice requirement) and:
(1) the Trustee is trustee under another indenture
under which any other securities, or certificates of interest
or participation in any other securities, of the Company are
outstanding or is trustee for more than one (1) outstanding
series of securities under a single indenture of the Company
unless such other indenture is a collateral trust indenture
under which the only collateral consists of Notes issued under
this Indenture; provided, however, that there shall be
excluded from the operation of this clause (1) any indenture
under which other securities, or certificates of interest or
participation in other securities, of the Company are
outstanding, if the Company shall have sustained the burden or
proving, on application to the Securities and Exchange
Commission and after opportunity for hearing thereon, that
trusteeship under this Indenture and such other indenture is
not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such
under this Indenture or such other indenture or indentures;
(2) the Trustee or any of the directors or executive
officers of the Trustee is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or
is directly or indirectly controlled by or is under direct or
indirect common control with an underwriter for the Company;
(4) the Trustee or any of the directors or executive
officers of the Trustee is a director, officer, employee,
appointee or representative of the Company, or of an
underwriter (other than the Trustee) for the Company who is
currently engaged in the business of underwriting, except that
(a) one (1) individual may be a director or an executive
officer, or both, of the Trustee and a director or an
executive officer, or both, of the Company, but may not be at
the same time an executive officer of the Trustee and the
Company; (b) if and so long as the number of directors of any
Trustee in office is more than nine (9), one (1) additional
individual may be a director or an executive officer, or both,
of such Trustee and a director of the Company; and (c) the
Trustee may be designated by the Company or by an underwriter
for the Company to act in the capacity of transfer agent,
registrar, custodian, paying
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agent, fiscal agent, escrow agent or depositary or in any
other similar capacity or, subject to the provisions of
paragraph (1) of this subdivision (C), to act as trustee,
whether under an indenture or otherwise;
(5) ten percent (10%) or more of the voting
securities of the Trustee is beneficially owned either by the
Company or by any director, or executive officer thereof, or
twenty percent (20%) or more of such voting securities is
beneficially owned, collectively, by any two (2) or more of
such persons; or ten percent (10%) or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director or executive
officer thereof, or is beneficially owned, collectively, by
any two (2) or more such persons;
(6) the Trustee is the beneficial owner of or holds
as collateral security for an obligation which is in default
(as hereinafter in this subdivision (C) of this Section 8.8
defined), (a) five percent (5%) or more of the voting
securities or ten percent (10%) or more of any other class of
security of the Company, not including the Notes issued under
this Indenture and securities issued under any other indenture
under which the Trustee is also trustee, or (b) ten percent
(10%) or more of any class of security of an underwriter for
the Company;
(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this subdivision (C) of this Section 8.8
defined), five percent (5%) or more of the voting securities
of any person who, to the knowledge of the Trustee owns ten
percent (10%) or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common
control with, the Company;
(8) the Trustee is the beneficial owner of or holds
as collateral security for an obligation which is in default
(as hereinafter in this subdivision (C) of this Section 8.8
defined), ten percent (10%) or more of any class of security
of any person who, to the knowledge of the Trustee owns fifty
percent (50%) or more of the voting securities of the Company;
(9) The Trustee owns on January 1 in any calendar
year in the capacity of executor, administrator, testamentary
or inter vivos trustee, guardian, committee or conservator, or
in any other similar capacity, an aggregate of twenty-five
percent (25%) or more of the voting securities or of any class
of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a
conflicting interest under clause (6), (7) or (8) of this
subdivision (C). As to any such securities of which the
Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which
included it, the provisions of the preceding sentence shall
not apply for a period of two (2)
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years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed
twenty-five percent (25%) of such voting securities or
twenty-five percent (25%) of any such class of security.
Promptly after January 1, in each calendar year, the Trustee
shall make a check of its or his holdings of such securities
in any of the above-mentioned capacities as of January 1. If
the Company fails to make payment in full of the Payments upon
the Notes if, when and as the same becomes due and payable
pursuant to and in accordance with the terms of the Notes and
this Indenture, and such failure continues for thirty (30)
days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such thirty-day
period and after such date, notwithstanding the foregoing
provisions of this clause (9), all such securities so held by
the Trustee with sole or joint control over such securities
vested in it or him, shall, but only so long as such failure
shall continue, be considered as though beneficially owned by
the Trustee for the purposes of clauses (6), (7) and (8) of
this subdivision (C); or
(10) the Trustee shall be or become a creditor of the
Company (except under the circumstances described under
paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the
TIA).
The specifications of percentages in clauses (5) to (9), inclusive, of
this subdivision (C) shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of clause
(3) or (7) of this subdivision (C).
For the purposes of clauses (6), (7), (8) and (9) of this subdivision
(C) only, (a) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms or any certificate of interest or participation in
any such note or evidence of indebtedness, (b) an obligation shall be deemed to
be in default when a default in payment of principal shall have continued for
thirty (30) days or more and shall not have been cured; and (c) the Trustee
shall not be deemed to be the owner or holder of (i) any security which it
holds as collateral security (as trustee or otherwise) for an obligation which
is not in default as above defined, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any Default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
(D) The percentages of voting securities and other securities
specified in this Section 8.8 shall be calculated in accordance with
the following provisions:
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(1) A specified percentage of the voting securities
of the Trustee, the Company or any other person referred to in
this Section 8.8 (each of whom is referred to as a "person" in
this subdivision (D)) means such amount of the outstanding
voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the
aggregate vote which the holders of all the outstanding voting
securities of such person are entitled to cast in the
direction or management of the affairs of such person.
(2) A specified percentage of a class of securities
of a person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount," when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if relating to
capital shares, and the number of units if relating to any
other kind of security.
(4) The term "outstanding" means issued and not held
by or for the account of the issuer. The following securities
shall not be deemed outstanding within the meaning of this
definition:
(a) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same
class;
(b) securities of an issuer held in a sinking
fund relating to another class of securities of the
issuer, if the obligation evidenced by such other
class of securities is not in default as to principal
or interest or otherwise;
(c) securities pledged by the issuer thereof
as security for an obligation of the issuer not in
default as to principal or interest or otherwise; or
(d) securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A Security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes; and
provided, further, that, in the case of
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unsecured evidences of indebtedness, differences in the interest rates
or maturity dates thereof shall not be deemed sufficient to constitute
them securities of different classes, whether or not they are issued
under a single indenture.
(E) For the purposes of this Section 8.8, unless
otherwise provided:
(1) The term "underwriter" when used with reference
to the Company means every person, who, within three (3) years
prior to the time as of which the determination is made, has
purchased from the Company with a view to, or has offered or
has sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or
has participated or has had a direct or indirect participation
in any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a person
whose interest was limited to a commission from an underwriter
or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation, or any individual performing similar functions
with respect to any organization whether incorporated or
unincorporated.
(3) The term "person" means an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization, or a
government or political subdivision thereof. As used in this
clause, the term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are
evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently
entitled to vote in the direction or management of the affairs
of a person.
(5) The term "Company" means any obligor upon the
Notes.
(6) The term "executive officer" means the
president, every vice president, every trust officer, the
cashier, the secretary, and the treasurer of a corporation,
and any individual customarily performing similar functions
with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
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SECTION 8.9 RESIGNATION, REMOVAL, APPOINTMENT OF SUCCESSOR
TRUSTEE.
(A) No resignation or removal of the Trustee, and no
appointment of a successor Trustee pursuant to this Article 8 shall
become effective until the acceptance of appointment by the successor
Trustee under this Section 8.9 and Section 8.10.
(B) The Trustee may resign at any time by giving written
notice thereof to the Company. 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 of
the appointment of a successor Trustee.
(C) The Trustee may be removed at any time by Act of the
holders of a majority in Principal amount of the Outstanding Notes,
delivered to the Trustee and to the Company.
(D) If at any time:
(1) the Trustee shall fail to comply with Section
8.8 after written request therefor by the Company or by any
Noteholder who has been a bona fide holder of a Note for at
least six (6) months, or
(2) the Trustee shall cease to be eligible under
Section 8.1 and shall fail to resign after written request
therefor by the Company or by any such Noteholder, or
(3) 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 propose of rehabilitation,
conservation or liquidation,
then, in any such case, (a) the Company by a Certified Resolution may remove
the Trustee or (b) subject to Section 5.11, any Noteholder who has been a bona
fide holder of a Note for at least six (6) months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(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 Company, by a Certified Resolution, shall
promptly appoint a successor Trustee. If, within one (1) year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the holders
of a majority in Principal amount of the Outstanding Notes delivered
to the Company and the retiring
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Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the
Noteholders and accepted appointment in the manner hereinafter
provided, any Noteholder who has been a bona fide holder of a Note for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(F) The Company shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee
by mailing written notice of such event by first-class mail, postage
prepaid, to the holders of Notes in the manner and to the extent
provided in Section 4.3. Each notice shall include the name of the
successor Trustee and address of the main office of the successor
Trustee.
SECTION 8.10 ACCEPTANCE BY SUCCESSOR TRUSTEE. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to 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; but, on request of the Company or the respective
successor Trustee, the respective retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such respective
successor Trustee all the rights, powers and trusts of the retiring respective
Trustee, and shall duly assign, transfer and deliver to such respective
successor Trustee all property and money held by such respective retiring
Trustee hereunder, subject nevertheless to its lien, if any, provided for in
Section 8.7. Upon request of any such respective successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
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 8 to the extent operative.
SECTION 8.11
(A) Notice, Etc. on Behalf of Company Delivered to
Trustee. Except as herein expressly provided to the contrary, any
notice, request, or other writing by or on behalf of the Company
delivered to the Trustee shall be deemed to have been delivered to the
Trustee hereunder as effectually as if delivered to each of them.
(B) Cash, Securities, Etc. to be Held by Trustee.
Notwithstanding anything herein contained to the contrary, all cash
collected by, or payable to, the Trustee pursuant to this Indenture
shall be paid to and deposited with, and all stocks,
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debentures and other obligations or securities shall be held by, the
Trustee, except as otherwise required by law.
Whenever any moneys, debentures, shares of stock or other obligations
are, under any provisions of this Indenture, paid or delivered to or deposited
with the Trustee, the same shall be deemed for all purposes hereunder to be
part of the security for the Notes issued hereunder, but nothing contained in
this Section 8.11 shall be deemed to affect or impair any power or right
conferred by any provision of this Indenture upon the Trustee to apply,
disburse or otherwise act or deal with respect to any moneys, debentures,
shares of stock or other obligations received or held by it as aforesaid.
SECTION 8.12 MERGER OR CONSOLIDATION 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, conversion, or consolidation to
which the Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee shall be the
successor of the Trustee hereunder provided such corporation shall be otherwise
qualified and eligible under this Article 8, to the extent operative, without
the execution or filing of any paper or the performance of any further act on
the part of any other parties hereto, anything herein to the contrary
notwithstanding. In case any of the Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any such successor to the Trustee
by merger, conversion or consolidation may adopt such authentication and
deliver the said Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.
SECTION 8.13 AUTHENTICATING AGENT. As long as any of the Notes
remain Outstanding, upon a Company Order there shall be an authenticating agent
appointed by the Trustee for such period as the Company shall elect, to act on
behalf of the Trustee and subject to its direction in connection with the
authentication of the Notes as set forth in this Indenture. Such
authenticating agent shall at all times be a banking corporation organized and
doing business under the laws of the United States or any State, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $60,000,000 subject to supervision or examination by
Federal or State authority, or an affiliate of such banking corporation, which
is also a corporation organized and doing business under the laws of the United
States or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $10,000,000 subject
to supervision or examination by Federal or State authority. 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 8.13 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.
Whenever reference is made in this Indenture to the authentication and
delivery of Notes by the Trustee or the Trustee's certificate of
authentication, such reference shall be
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deemed to include authentication and delivery on behalf of the Trustee by an
authenticating agent and a certificate of authentication executed on behalf of
the Trustee by an authenticating agent.
Any corporation in which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate agency
business of any authenticating agent, shall continue to be the authenticating
agent without the execution or filing of any paper or any further act on the
part of the Trustee or the authenticating agent.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of any authenticating agent by giving written
notice of termination to such authenticating agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any authenticating agent shall cease to be eligible in accordance
with the provisions of this Section 8.13, the Trustee promptly shall appoint a
successor authenticating agent, shall give written notice of such appointment
to the Company and shall mail notice of such appointment to all holders of
Notes as the names and addresses of such holders appear on the Note Register.
Any successor authenticating agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder. No successor authenticating agent shall be
appointed unless eligible under the provisions of this Section 8.13.
The Trustee agrees to pay to the authenticating agent from time to
time reasonable compensation for its services, and the Trustee shall be
entitled to be reimbursed for such payments from the Company subject to the
provisions of Section 8.7. The provisions of Section 6.1, 8.3 and 8.4 shall be
applicable to any authenticating agent.
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.1 ACKNOWLEDGMENT OF DISCHARGE. This Indenture shall
cease to be of further effect (except as to any rights of registration of
transfer or exchange of Notes herein expressly provided for and the rights to
receive payments of Interest thereon pursuant to and in accordance with the
terms of the Notes and this Indenture), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction, cancellation and discharge of this Indenture, when
(A) either
(1) all Notes theretofore authenticated and
delivered other than (a) Notes which have been destroyed, lost
or stolen and which have been
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replaced or paid as provided in Section 2.10, and (b) Notes
for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 13.2 have been delivered to the
Trustee for cancellation; or
(2) with respect to all such Notes not theretofore
delivered to the Trustee for cancellation, the Company has
deposited or caused to be deposited with the Trustee, as trust
funds in trust for the purpose, an amount sufficient to pay
and discharge the entire amount of unpaid Payments payable
with respect to such Notes;
(B) The Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(C) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture the
obligations of the Company to the Trustee under Section 8.7 shall survive.
SECTION 9.2 MONEY HELD IN TRUST. All money deposited with the
Trustee pursuant to Section 9.1 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any paying agent (including the Company acting as
its own 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 by law. The Trustee shall give notice in
the name and at the expense of the Company of the immediate availability of the
money deposited with the Trustee pursuant to Section 9.1 to the persons
entitled to such money.
ARTICLE 10
MEETING OF NOTEHOLDERS
SECTION 10.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of the Noteholders may be called at any time and from time to time pursuant to
the provisions of this Article 10 for any of the following purposes:
(A) To give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any Event of Default hereunder and its consequences, or to take any
other action authorized to be taken by the Noteholders pursuant to any
of the provisions of Article 2;
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(B) To remove the Trustee and appoint a successor trustee
pursuant to any of the provisions of Article 8;
(C) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Article
11; or
(D) To take any other action authorized to be taken by or
on behalf of Noteholders of any specified aggregate Principal amount
of the Notes under any other provisions of this Indenture, or
authorized or permitted by law.
SECTION 10.2 CALL OF MEETING BY TRUSTEE; GENERALLY. Meeting of
Noteholders may be held at such place or places and at such time or times in
any place of payment as the Trustee or, in case of its failure to act, the
Company or the Noteholders calling the meeting, shall from time to time
determine.
SECTION 10.3 CALL OF MEETINGS BY TRUSTEE; NOTICE. The Trustee may
at any time call a meeting of the Noteholders to take any action specified in
Section 10.1, to be held at such time and at such place designated in Section
10.2 as the Trustee shall determine. Notice of every meeting of the
Noteholders, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, and specifying each
series of Notes which would be affected by the proposed action, shall be mailed
by the Trustee at the expense of the Company, first class postage prepaid, to
the Noteholders at their last addresses as they shall appear upon the Note
Register, not less than twenty (20) nor more than one hundred twenty (120) days
prior to the date fixed for the meeting. Any defect in said notice shall not,
however, in any way impair or affect the validity of any such meeting.
The Trustee may in its discretion determine, subject to the meaning of
the term "affected" as set forth in Section 11.2, whether or not Notices of any
particular series would be affected by action proposed to be taken at a meeting
and any such determination shall be conclusive upon the holders of Notes of
such series and all other series. Subject to the provisions of Section 8.2,
the Trustee shall not be liable for any such determination made in good faith.
Any meeting of the Noteholders shall be valid without notice if
Noteholders, holding all Notes then Outstanding, which would be affected by the
action proposed to be undertaken, are present in person or by proxy or have
waived notice before or after the meeting by Noteholders, and if the Company
and the Trustee are either present by duly authorized representatives or have,
before or after the meeting, waived notice.
In case at any time the Company, pursuant to a Certified Resolution,
or Noteholders holding at least ten percent (10%) in aggregate Principal amount
of the Notes then Outstanding, which would be affected by the action proposed
to be undertaken, shall have requested the Trustee to call a meeting of the
Noteholders to take any action authorized by
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Section 10.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within twenty (20) days after receipt of such request,
then the Company or Noteholders holding the amount above specified may
determine the time and the place for such meeting and may call such meeting for
such purpose by giving notice thereof in the manner provided in this Section
10.3.
SECTION 10.4 MEETINGS, NOTICE AND ENTITLEMENT TO BE PRESENT. Only
Noteholders holding Notes, which would be affected by the action proposed to be
undertaken, and persons appointed by an instrument in writing as proxy for such
a Noteholder by such a Noteholder are entitled to notice of and to vote at any
meeting of the Noteholders. The only persons who shall be entitled to be
present or to speak at any meeting of the Noteholders shall be the persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel, and any representatives of the Company and its
counsel.
SECTION 10.5 REGULATIONS MAY BE MADE BY TRUSTEE. Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of the Noteholders, in
regard to proof of the holding of Notes and of the appointment of proxies, and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate.
Such regulations (A) may provide for the closing of the Note Register
for such period as the Trustee may deem necessary or (B) may fix a record and
time for determining the record Noteholders of the Notes entitled to vote at
such meeting. All Noteholders seeking to attend or vote at a meeting in person
or by proxy must, if required by any authorized representative of the Trustee
or the Company or by any other Noteholder, produce the Notes claimed to be
owned or represented at such meeting, and every one seeking to attend or vote
shall, if required as aforesaid, produce such further proof of Note ownership
or personal identity as shall be satisfactory to the authorized representative
of the Trustee, or if none be present then to the inspectors of votes
hereinafter provided for.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Noteholders as provided in Section 10.3, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting may be elected by vote of Noteholders holding a
majority in Principal amount of the Notes represented at the meeting and
entitled to vote.
At any meeting each Noteholder or proxy shall be entitled to one vote
for each $1,000 Principal amount of Notes then Outstanding owned by such
Noteholder or represented
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by such proxy; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Notes challenged as not Outstanding and ruled by the
temporary or permanent chairman of the meeting to be not Outstanding. The
temporary or permanent chairman of the meeting shall have no right to vote
other than by virtue of Notes held by him or instruments in writing as
aforesaid duly designating him as the person to vote on behalf of other
Noteholders.
At any meeting of Noteholders, the presence of persons holding or
representing Notes in an aggregate Principal amount sufficient under the
appropriate provision of this Indenture to take action upon the business for
the transaction of which such meeting was called shall constitute a quorum.
Any meeting of holders duly called pursuant to Section 10.3 may be adjourned
from time to time by vote of the holders (or proxies for the holders) of a
majority in aggregate Principal amount of the Notes represented at the meeting
and entitled to vote, whether or not a quorum shall be present; and the meeting
may be held as so adjourned without further notice.
SECTION 10.6 MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of the Noteholders shall
be by written ballots on which shall be subscribed the signatures of the
Noteholders or of their representatives by proxy and the Principal amount of
the Notes voted by the ballot. The temporary or permanent chairman of the
meeting shall appoint two (2) inspectors of votes, who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record at least in duplicate of the
proceedings of each meeting of the Noteholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one (1) or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 10.3. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
copy thereof shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 10.7 EVIDENCE OF ACTION BY HOLDERS OF SPECIFIED PERCENTAGE
OF NOTES. Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate Principal amount of the Notes of any series
may take any action (including the making of any demand or request, the giving
of any notice, consent, or waiver or the taking of any other action) the fact
that at the time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (A) by any instrument or any
number of instruments of similar tenor executed by holders in person or by
agent or proxy appointed in writing, or (B) by the record of the holders of
Notes voting in favor thereof at
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any meeting of holders duly called and held in accordance with the provisions
of this Article 10, or (C) by a combination of such instrument or instruments
and any such record of such a meeting of holders.
SECTION 10.8 EXERCISE OF RIGHT OF TRUSTEE OR NOTEHOLDERS MAY NOT
BE HINDERED OR DELAYED BY CALL OF MEETING OF NOTEHOLDERS. Nothing in this
Article 10 contained shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of the Noteholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE 11
SUPPLEMENTAL INDENTURES
SECTION 11.1 PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
EXECUTED BY COMPANY AND TRUSTEE. Without the consent of the holders of any
Notes, the Company, when authorized by a Certified Resolution of its Board of
Directors, and the Trustee may at any time and from time to time, enter into an
indenture or indentures supplemental hereto, in form satisfactory to the
Trustee, for one or more of the following purposes:
(A) To evidence the succession of another corporation to
the Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligation of
the Company pursuant to Article 7 hereof;
(B) To add to the covenants of the Company such further
covenants for the protection of the Noteholders, to insure the
enforcement of the remedies of the Trustee and Noteholders upon an
Event of Default by the Company, or to surrender any right or power
herein conferred upon the Company as the Board of Directors shall
consider to be necessary for the protection of the Noteholders, and to
make the occurrence and continuance of a default under any of such
additional covenants a Default permitting the enforcement of all or
any of the several remedies provided in this Indenture; provided,
however, that in respect of any such additional covenant, such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other Defaults) or may provide for an immediate
enforcement of said remedy or remedies upon such default or may limit
the remedies available to the Trustee upon such default or may
authorize the holders of not less than a majority in aggregate
Principal amount of the Outstanding Notes to waive such default and
prescribe limitations on such rights of waiver; or
(C) To cure any ambiguity or to correct or supplement any
provision contained in this Indenture which may be inconsistent with
any other provision
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contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under this
Indenture as shall not be inconsistent with the provisions and
purposes of this Indenture, provided any such action shall not
adversely affect the interest of the Noteholders.
Nothing contained in this Article 11 shall affect or limit the right
or obligation of the Company to execute and deliver to the Trustee any
instrument of further assurance or other instrument which elsewhere in this
Indenture it is provided shall be delivered to the Trustee.
The Trustee is hereby authorized and directed to join with the Company
in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be herein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to enter into any such supplemental
indenture which, in its opinion, does not afford adequate protection to the
Trustee or adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise or adversely affects the interests of the
Noteholders.
SECTION 11.2 MODIFICATION OF INDENTURE BY WRITTEN CONSENT OF
NOTEHOLDERS. With the consent (evidenced as provided in Article 10) of the
holders of not less than a majority in aggregate Principal amount of the
Outstanding Notes by Act of said holders delivered to the Company and the
Trustee, the Company (when authorized by a Certified Resolution) and the
Trustee at any time and from time to time, by entering into an indenture or
indentures supplemental hereto, may modify, alter, add to or eliminate in any
manner (with the approval of any governmental agency if required by law) any
provisions of this Indenture or the rights of the Noteholders or the rights and
obligations of the Company; provided, however, that no such supplemental
indenture shall, without the consent of the holder of each Outstanding Note
affected thereby:
(A) change the Stated Maturity of the Notes, reduce the
Payments of any Note, if any are due and payable pursuant to and in
accordance with the terms of the Notes and this Indenture, or the coin
or currency in which such Payments are payable, or amend the
definition of Available Cash, or impair the right to institute suit
for the enforcement of payment of any such Payments on or after such
amounts have become due and payable pursuant to and in accordance with
the terms of the Notes and this Indenture, or
(B) reduce the percentage(s) of the aggregate Principal
amount of Outstanding Notes, the consent of the holders of which is
required for any such supplemental indenture, or the consent of whose
holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain Defaults hereunder and their
consequences) provided for in this Indenture, or
(C) modify any of the provisions of this Section 11.2 or
Section 5.15, except to increase any such percentage or to provide
that certain other provisions of
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this Indenture cannot be modified or waived without the consent of the
holder of each Note affected thereby.
Notes shall be deemed to be "affected" by a supplemental indenture, if
such supplemental indenture adversely affects or diminishes the rights of
holders thereof against the Company or against the property of the Company.
The Trustee may in the exercise of its discretion, subject to Section 8.2,
determine whether or not any Notes would be affected by any supplemental
indenture and any such determination shall be conclusive upon the holders of
all Notes, whether theretofore or thereafter authenticated and delivered
hereunder.
It shall not be necessary for any Act of Noteholders under this
Section 11.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Any supplemental indenture authorized by the provisions of this
Section 11.2 shall be executed by the Company and the Trustee in accordance
with the terms of Section 11.3.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 11.3, the Company
shall mail to the holders of the Notes at their last addresses as they shall
appear on the Note Register of the Company a notice setting forth in general
terms the substance of such supplemental indenture. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 11.3 REQUIREMENTS FOR EXECUTION; DUTIES AND IMMUNITIES OF
TRUSTEE. Prior to the execution of any supplemental indenture, the Trustee
shall receive a Company Request, accompanied by a Certified Resolution
authorizing the execution of any supplemental indenture pursuant to Section
11.1 or Section 11.2, and, if pursuant to Section 11.2, evidence filed with the
Trustee of the Act of Noteholders as aforesaid.
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 shall be entitled to
receive, and subject to Section 8.2 shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and stating such other matters as
the Trustee may reasonably request. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's rights, duties or immunities under this Indenture or otherwise.
SECTION 11.4 SUPPLEMENTAL INDENTURES PART OF INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article 11, this Indenture shall be, and shall be deemed to be, modified and
amended in accordance therewith and the respective rights, limitations, duties
and obligations under this Indenture of the Company, the Trustee and the
Noteholders, and each of them, shall thereafter be
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determined, exercised and enforced hereunder, subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be, and shall be deemed to be, part of the terms
and conditions of this Indenture for any and all purposes, as if originally
contained herein.
SECTION 11.5 NOTES EXECUTED AFTER SUPPLEMENTAL INDENTURE TO BE
APPROVED BY TRUSTEE. Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article 11 may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee, as to any matter provided for in such supplemental indenture. If the
Company and the Trustee shall so determine, new Notes modified so as to
conform, in the opinion of the Trustee and the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture, may be prepared by the Company, authenticated by the
Trustee and delivered without expense to the holders of the Outstanding Notes,
upon surrender of such Notes, the new Notes so issued to be in an aggregate
Principal amount equal to the aggregate Principal amount of those so
surrendered.
SECTION 11.6 SUPPLEMENTAL INDENTURES REQUIRED TO COMPLY WITH TRUST
INDENTURE ACT OF 1939. No supplemental indenture shall be entered into
pursuant to any authorization contained in this Indenture which shall not
comply with the provisions of the Trust Indenture Act of 1939 as then in
effect.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1 IMMUNITY OF CERTAIN PERSONS. No recourse for the
payment of the Payments on any Note, if any are due and payable pursuant to and
in accordance with the terms of the Notes and this Indenture, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon
any obligation, covenant or agreement of the Company, contained in this
Indenture or in any supplemental indenture, or in any Note, or because of the
creation of any contingent indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor corporation, either directly
or through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.
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ARTICLE 13
MISCELLANEOUS
SECTION 13.1 BENEFITS RESTRICTED TO PARTIES AND TO HOLDERS OF
NOTES. Except as provided herein, nothing in this Indenture, expressed or
implied, is intended, or shall be construed, to confer upon, or to give to, any
person other than the parties hereto and the Holders of the Notes Outstanding
hereunder any right, remedy, or claim under or by reason of this Indenture or
any covenant, condition, stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulation, promises and agreements contained in this
Indenture by and on behalf of the Company shall be for the sole and exclusive
benefit of the parties hereto, and of the holders of the Notes Outstanding
hereunder.
SECTION 13.2 DEPOSITS FOR NOTES NOT CLAIMED FOR SPECIFIED PERIOD
TO BE RETURNED TO COMPANY ON DEMAND. Any moneys deposited with the Trustee or
any paying agent, or then held by the Company, in trust for the payment of the
Payments on any Note and remaining unclaimed for six (6) years after the date
upon which the Payments on such Notes shall have become due and payable
pursuant to and in accordance with the terms of the Notes and this Indenture,
shall be paid to the Company upon Company Request, or, if then held by the
Company, shall be discharged from such trust; and the holder shall thereafter,
as an unsecured general creditor, be entitled to look only to the Company for
payment thereof, and all liability of the Trustee or any paying agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that, before being required
to make any such payment to the Company, the Trustee, or any paying agent, may,
at the expense of the Company, cause to be published once in a Daily Newspaper
in such areas as the Trustee, or any paying agent, as the case may be, may deem
necessary a notice that such moneys remain unclaimed and that, after a date
named in said notice, the balance of such moneys then unclaimed will be
returned to the Company.
SECTION 13.3 FORMAL REQUIREMENTS OF CERTIFICATES AND OPINIONS
HEREUNDER.
(A) Each certificate or opinion which is specifically
required by the provisions of this Indenture to be delivered to the
Trustee with respect to compliance with a condition or covenant herein
contained shall include (1) a statement that each person signing such
certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinions are based; (3) a statement that, in the
opinion of each such person, he has made such examination or
investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not in the opinion
of each such person such condition or covenant has been complied with.
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(B) Every request or Application by the Company for
action by the Trustee shall be accompanied by an Officers' Certificate
stating that all conditions precedent, if any, to such action,
provided for in this Indenture (including any covenants compliance
with which constitutes a condition precedent) have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel
all conditions precedent, if any, to such action, provided for in this
Indenture (including any covenants compliance with which constitutes a
condition precedent) have been complied with, except that in the case
of any such request or Application as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular request or Application, no additional
certificate or opinion need be furnished.
(C) 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.
SECTION 13.4 EVIDENCE OF ACT OF THE NOTEHOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Noteholders may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such Noteholders in person or by 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 Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders 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 8.2) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or a member of
a partnership, on behalf of such corporation or partnership, or by a fiduciary,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
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Any request, demand, authorization, direction, notice, consent, waiver
or other action by the holder of any Note shall bind every future holder to the
same Note and the holder of every Note issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done or suffered
to be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 13.5 PARTIES TO INCLUDE SUCCESSORS AND ASSIGNS. Subject
to the provisions of Articles 7 and 8 hereof, whenever in this Indenture any of
the parties hereto is named or referred to, such name or reference shall be
deemed to include the successors or assigns of such party, and all the
covenants and agreements in this Indenture contained by or on behalf of the
Company or by or on behalf of Trustee shall bind and insure to the benefit of
the respective successors and assigns of such parties whether so expressed or
not.
SECTION 13.6 IN EVENT OF CONFLICT WITH TRUST INDENTURE ACT OF
1939, PROVISIONS THEREIN TO CONTROL. If any provision of this Indenture
limits, qualifies, or conflicts with another provision of this Indenture
required to be included herein by any of the provisions of the Trust Indenture
Act of 1939 such required provision shall control. Provisions required by said
Trust Indenture Act to be included herein which are not included herein are
hereby incorporated herein by reference to said Trust Indenture Act.
SECTION 13.7 REQUEST, NOTICES, ETC. TO TRUSTEE OR COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
the Noteholders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with:
(A) the Trustee by any Noteholder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its main office, or
(B) the Company by the Trustee or by any Noteholders
shall be sufficient for every purpose hereunder (except as herein
otherwise provided) if in writing and mailed, first-class, postage
prepaid, to the Company addressed to it at 000 Xxxx Xxxx Xxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000 or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 13.8 MANNER OF NOTICE. Where this Indenture provides for
notice to Noteholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class, postage prepaid, to each Noteholder affected by such event, at his
address as it appears on the Note 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 Noteholders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Noteholder shall affect the sufficiency of such notice with respect to other
Noteholders, and any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given.
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Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the 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 Noteholders shall be filed with the Trustee, but
such filing shall not be condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders 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 13.9 SEVERABILITY. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 13.10 PAYMENTS DUE ON DAYS WHEN BANKS CLOSED. In any case
where the date of any Payment Date or the Stated Maturity of any Note or any
date on which any other payment is to be made or any action is to be taken
shall not be a business day, then (notwithstanding any other provision of the
Notes or this Indenture) payment of the Principal of or Interest on, any Notes
or other payment or action need not be made or taken on such date, but may be
made or taken on the next succeeding business day with the same force and
effect as if made on the nominal date of any such Payment Date or Stated
Maturity or date for any other payment or action, as the case may be, and no
interest shall accrue for the period from and after any such nominal date.
SECTION 13.11 BACKUP WITHHOLDING FORMS. The Company shall provide
the Trustee with Backup Withholding Forms prescribed by the Internal Revenue
Service and shall indemnify the Trustee for any penalties, expenses, costs and
liabilities assessed against the Trustee for using improper forms.
SECTION 13.12 TITLES OF ARTICLES AND SECTIONS OF THIS INDENTURE NOT
PART THEREOF. The titles of the several Articles and Sections of this
Indenture and the table of contents shall not be deemed to be any part hereof.
SECTION 13.13 EXECUTION IN COUNTERPARTS. This Indenture is being
executed in several counterparts, each of which shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 13.14 GOVERNING LAW. This Indenture and each Note issued
hereunder shall be governed by the laws of the State of New York as to all
matters affecting the duties, liabilities, privileges, rights and obligations
of the Noteholders, the Company and the Trustee and any agents of the
foregoing, including but not limited to, matters of validity, construction,
effect and performance.
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SECTION 13.15 PLAN PROVISIONS CONTROL. Subject to Section 13.6
hereof, in the event that any provision of this Indenture conflicts with, or is
materially different than, any provision of the Plan, such provision of the
Plan will control and govern.
IN WITNESS WHEREOF, FIRST MERCHANTS ACCEPTANCE CORPORATION has caused
its name to be hereunto affixed, and this instrument to be signed by its
President or any Vice President and its corporate seal to be affixed hereto,
and the same to be attested by its Secretary or an Assistant Secretary; and IBJ
Xxxxxxxx Bank & Trust Company, in token of its acceptance of the trust hereby
created, has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by one of its Officers and its corporate
seal to be attested by its Secretary or by one or its Assistant Secretaries, as
of the day and year first written above.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By:
-----------------------------
President or Vice President
ATTEST:
------------------------------
Assistant Secretary
IBJ XXXXXXXX BANK & TRUST COMPANY
By:
-----------------------------
ATTEST:
------------------------------
Assistant Secretary
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