1
EXHIBIT 4.1
LITCHFIELD FINANCIAL CORPORATION
AND
THE BANK OF NEW YORK,
TRUSTEE
---------------------------
INDENTURE
Dated as of July 15, 1998
---------------------------
$100,000,000
2
Litchfield Financial Corporation
TIE-SHEET
of provisions of Trust Indenture Act of 1939 and the Indenture dated as
of July 15, 1998, between Litchfield Financial Corporation and The Bank of New
York, Trustee.
TRUST INDENTURE
ACT OF 1939
SECTION INDENTURE SECTION
------------------------------------------- -----------------
310(a)(1)(2)(3)............................ 10.1 and 10.12
(a)(4).................................. Not applicable
(b)..................................... 10.8 and 10.9
(c)..................................... Not applicable
311(c)..................................... Not applicable
312(a)..................................... 4.1(a) and (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) and (b)
(b)..................................... Not applicable
(c)..................................... 13.3
(d)..................................... Not applicable
(e)..................................... 15.3
315(a)..................................... 10.2
(b)..................................... 7.2
(c)..................................... 10.2(b)
(d)..................................... 10.2(c)
(e)..................................... 7.12
316(a)(1).................................. 7.3
(a)(2).................................. Not applicable
(b)..................................... 7.3
317(a)..................................... 7.7
(b)..................................... 3.4
318(a)..................................... 15.6
---------------
This tie-sheet does not constitute a part of the Indenture.
3
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
1.1 ..................................................................... 1
"Act"............................................................... 1
"affected".......................................................... 1
"Affiliate"......................................................... 2
"Agent Members"..................................................... 2
"Annual Amount Limitations"......................................... 2
"applicable supplemental indenture"................................. 2
"Applicants"........................................................ 2
"Authenticating Agent".............................................. 2
"Bankruptcy Act".................................................... 2
"Board of Directors" or "Board"..................................... 2
"business day"...................................................... 2
"Calculation Date".................................................. 2
"Calculation Period"................................................ 2
"capital stock"..................................................... 2
"Certified Resolution".............................................. 2
"Commission"........................................................ 3
"Company"........................................................... 3
"Company Order" and "Company Request"............................... 3
"corporation"....................................................... 3
"daily newspaper"................................................... 3
"date of this Indenture"............................................ 3
"day"............................................................... 3
"Default"........................................................... 3
"Defaulted Interest"................................................ 3
"Depositary"........................................................ 3
"Event of Default".................................................. 3
"Exchange Act"...................................................... 3
"Executive Officer"................................................. 3
"Fair Market Value"................................................. 3
"Federal Bankruptcy Act"............................................ 4
"Five Percent Limitation"........................................... 4
"Fundamental Structural Change"..................................... 4
"Global Note" or "Global Notes"..................................... 4
"Indebtedness"...................................................... 4
"Indenture"......................................................... 5
"Interest Payment Date"............................................. 5
i
4
"lien" ........................................................... 5
"main office"....................................................... 5
"maturity" or "mature,"............................................. 5
"Minimum Level"..................................................... 5
"Note" or "Notes"................................................... 5
"Notes Custodian" .................................................. 5
"Note Register," "Note Co-Registrar" and "Note Registrar"........... 5
"Noteholder," "noteholder," "holder of the Notes,"
"Holder" or "holder"................................................ 5
"Notice of Default"................................................. 5
"Officers' Certificate"............................................. 5
"Opinion of Counsel"................................................ 5
"outstanding"....................................................... 6
"paying agent"...................................................... 6
"Permitted Investments"............................................. 6
"person"............................................................ 6
"place of payment".................................................. 6
"predecessor Note".................................................. 7
"Proceeding"........................................................ 7
"Qualified Institutions"............................................ 7
"Ratio"............................................................. 7
"Redemption Date"................................................... 7
"Redemption Period"................................................. 7
"Redemption Register"............................................... 7
"Regular Record Date"............................................... 7
"Repurchase Date"................................................... 7
"Required Rating"................................................... 7
"Responsible Officers".............................................. 7
"Significant Subsidiary"............................................ 7
"Significant Subsidiary Disposition"................................ 7
"Special Record Date"............................................... 8
"Stated Maturity"................................................... 8
"Subsidiary"........................................................ 8
"supplemental indenture" or "indenture supplemental
hereto"............................................................ 8
"Trustee"........................................................... 8
"Trust Indenture Act" or "TIA"...................................... 8
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
2.1 Designation, Amount and Issue of Notes.............................. 8
2.2 Form of Notes....................................................... 9
2.3 Denominations, Dates, Interest Payment and Record Dates............. 9
2.4 Numbers and Legends on Notes........................................ 10
2.5 Execution of Notes.................................................. 10
ii
5
2.6 Registration of Transfer of Notes.................................. 11
2.7 Exchange and Registration of Transfer of Notes..................... 11
2.8 Temporary Notes.................................................... 12
2.9 Recognition of Registered Holders of Definitive Notes
and Temporary Notes................................................ 12
2.10 Mutilated, Destroyed, Lost or Stolen Notes......................... 12
2.11 Authentication of Notes............................................ 13
2.12 Surrender and Cancellation of Notes................................ 13
2.13 Book-Entry Provisions for Global Notes............................. 14
2.14 Certificated Notes................................................. 14
ARTICLE 3
PARTICULAR COVENANTS OF THE COMPANY
3.1 Payment of Principal of and Premium, If Any, and
Interest on Notes.................................................. 15
3.2 Maintenance of Office or Agency for Registration of
Transfer, Exchange and
Payment of Notes................................................... 15
3.3 Appointment to Fill a Vacancy in the Office of Trustee............. 15
3.4 Provision as to Paying Agent. ..................................... 15
3.5 Maintenance of Corporate Existence................................. 16
3.6 Notice of Default.................................................. 17
3.7 Will Pay Indebtedness.............................................. 17
3.8 Will Keep, and Permit Examination of, Records and Books
of Account and Will Permit Visitation of Property.................. 17
3.9 Maintenance of Properties.......................................... 18
3.10 Payment of Taxes and Other Claims.................................. 18
3.11 Restrictions on Indebtedness....................................... 18
3.12 Will Maintain Office............................................... 19
3.13 Limitation on Dividends and Other Payments......................... 19
ARTICLE 4
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
4.1 Noteholder Lists, Etc.............................................. 20
4.2 Reports by Company................................................. 21
4.3 Reports by Trustee................................................. 22
ARTICLE 5
REDEMPTION OF NOTES AT COMPANY'S OPTION
5.1 Election by Company to Redeem Notes................................ 22
5.2 Redemption of Part of Notes........................................ 23
iii
6
5.3 Notice of Redemption............................................... 23
5.4 Deposit of Redemption Price........................................ 24
5.5 Date on Which Notes Cease to Bear Interest, Etc.................... 24
5.6 All Notes Delivered................................................ 24
ARTICLE 6
REDEMPTION OF NOTES AT HOLDER'S OPTION
6.1 Redemption Right at Holder's Option................................ 25
6.2 Redemption Procedure. ............................................. 25
6.3 Withdrawal......................................................... 27
6.4 Redemption Register................................................ 27
6.5 Redemption Upon Fundamental Structural Change or
Significant Subsidiary Disposition................................. 27
6.6 Redemption of Notes Subject to Article 5........................... 28
ARTICLE 7
REMEDIES OF TRUSTEE AND NOTEHOLDERS UPON DEFAULT
7.1 Definition of Default and Event of Default......................... 29
7.2 Trustee to Give Noteholders Notice of Defaults..................... 30
7.3 Declaration of Principal and Accrued Interest Due
Upon Default; Holders of Specified Percentage of
Notes May Waive Default Declaration................................ 30
7.4 Power of Trustee to Protect and Enforce Rights..................... 31
7.5 Remedies Cumulative................................................ 31
7.6 Holders of Specified Percentage of Notes May Direct
Judicial Proceedings by Trustee.................................... 32
7.7 Actions Taken By Trustee Upon Event of Default..................... 32
7.8 Possession of Notes Unnecessary in Action by Trustee............... 33
7.9 Trustee May File Necessary Proofs.................................. 33
7.10 Limitation Upon Right of Noteholders to Institute
Certain Legal Proceedings.......................................... 34
7.11 Right of Noteholder to Receive and Enforce Payment
Not Impaired....................................................... 35
7.12 Court May Require Undertaking to Pay Costs......................... 35
7.13 Unenforceable Provision Inoperative................................ 35
7.14 If Enforcement Proceedings Abandoned, Status Quo
is Established..................................................... 35
7.15 Noteholders May Waive Certain Defaults............................. 36
ARTICLE 8
EVIDENCE OF RIGHTS OF NOTEHOLDERS
AND OWNERSHIP OF NOTES
8.1 Evidence of Ownership of Definitive Notes and
Temporary Notes Issued Hereunder in Registered Form................ 36
iv
7
ARTICLE 9
CONSOLIDATION, MERGER AND SALE
9.1 Company May Merge, Consolidate, Etc., Upon Certain Terms........... 36
9.2 Successor Corporation to be Substituted............................ 37
9.3 Article 9 Subject to the Provisions of Section 6.5................. 37
ARTICLE 10
CONCERNING THE TRUSTEE
10.1 Requirement of Corporate Trustee, Eligibility...................... 37
10.2 Acceptance of Trust................................................ 38
10.3 Disclaimer......................................................... 39
10.4 Trustee May Own Notes.............................................. 39
10.5 Trustee May Rely on Certificates, Etc.............................. 39
10.6 Money Held in Trust Not Required to be Segregated.................. 41
10.7 Compensation, Reimbursement, Indemnity, Security................... 41
10.8 Conflict of Interest............................................... 42
10.9 Resignation, Removal, Appointment of Successor Trustee............. 47
10.10 Acceptance by Successor Trustee.................................... 48
10.11 Cash, Securities, Etc. to be Held by Trustee....................... 49
10.12 Merger or Consolidation of Trustee................................. 49
10.13 Authenticating Agent............................................... 49
ARTICLE 11
DISCHARGE OF INDENTURE
11.1 Acknowledgment of Discharge........................................ 50
11.2 Money Held in Trust................................................ 51
ARTICLE 12
MEETING OF NOTEHOLDERS
12.1 Purposes for Which Meetings May be Called.......................... 52
12.2 Call of Meetings by Trustee; Generally............................. 52
12.3 Call of Meetings by Trustee; Notice................................ 52
12.4 Meetings, Notice and Entitlement to be Present..................... 53
12.5 Regulations May be Made by Trustee. ............................... 53
12.6 Manner of Voting at Meetings and Record to be Kept................. 54
12.7 Evidence of Action by Holders of Specified
Percentage of Notes................................................ 55
12.8 Exercise of Right of Trustee or Noteholders May Not
be Hindered or Delayed by Call of Meeting of Noteholders........... 55
v
8
ARTICLE 13
SUPPLEMENTAL INDENTURES
13.1 Purposes for Which Supplemental Indentures May be
Executed by Company and Trustee. .................................. 55
13.2 Modification of Indenture by Written Consent
of Noteholders..................................................... 56
13.3 Requirements for Execution; Duties and Immunities
of Trustee......................................................... 58
13.4 Supplemental Indentures Part of Indenture.......................... 58
13.5 Notes Executed After Supplemental Indenture to be
Approved by Trustee................................................ 58
13.6 Supplemental Indentures Required to Comply with
Trust Indenture Act of 1939........................................ 59
ARTICLE 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
14.1 Immunity of Certain Persons........................................ 59
ARTICLE 15
MISCELLANEOUS
15.1 Benefits Restricted to Parties and to Holders of Notes............. 59
15.2 Deposits for Notes Not Claimed for Specified Period to
be Returned to Company on Demand................................... 60
15.3 Formal Requirements of Certificates and Opinions Hereunder......... 60
15.4 Evidence of Act of the Noteholders................................. 61
15.5 Parties to Include Successors and Assigns. ........................ 61
15.6 In Event of Conflict with Trust Indenture Act of 1939,
Provisions Therein to Control...................................... 61
15.7 Request, Notices, Etc. to Trustee.................................. 62
15.8 Manner of Notice................................................... 62
15.9 Severability....................................................... 62
15.10 Payments Due on Days When Banks Closed............................. 63
15.11 Backup Withholding Forms........................................... 63
15.12 Titles of Articles of This Indenture Not Part Thereof.............. 63
15.13 Execution in Counterparts. ........................................ 63
15.14 Governing Law...................................................... 63
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
vi
9
This INDENTURE, dated as of July 15, 1998 between LITCHFIELD FINANCIAL
CORPORATION, a Massachusetts corporation (herein called the "Company") and THE
BANK OF NEW YORK, a New York banking corporation (herein, together with each
successor as such trustee hereunder, called the "Trustee").
WITNESSETH:
WHEREAS, the Company deems it necessary to authorize the issuance from
time to time of certain Notes (hereinafter sometimes called the "Notes") in one
or more series, in an aggregate principal amount up to $100,000,000, to bear
such rates of interest, to mature at such time or times and to have such other
provisions as shall be provided in this Indenture or in one or more supplemental
indentures in accordance herewith;
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;
and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms have been done and performed, and the execution
of this Indenture has in all respects been duly authorized;
NOW THEREFORE:
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
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 15.4.
"affected" has the meaning specified in SECTION 13.2.
1
10
"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 to 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.
"Agent Members" has the meaning specified in SECTION 2.13.
"Annual Amount Limitations" has the meaning specified in SECTION 6.1.
"applicable supplemental indenture" means, with respect to any series
of Notes, the supplemental indenture which authorized the issuance of such
Notes, and any amendments thereto.
"Applicants" has the meaning specified in SECTION 4.1.
"Authenticating Agent" means the agent of the Trustee which at the time
shall be appointed and acting pursuant to SECTION 10.13.
"Bankruptcy Act" means Title I of the Bankruptcy Reform Act of 1978, as
amended, and codified at Title 11 of the United States Code, including the
Federal Rules of Bankruptcy Procedure as in effect as of the date hereof or as
hereafter amended, or any similar federal, state or foreign law for the relief
of debtors.
"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 banking institutions in the State in which the Trustee shall
maintain its main office are authorized or obligated by law or required by
executive order to close.
"Calculation Date" has the meaning specified in SECTION 3.11.
"Calculation Period" has the meaning specified in SECTION 3.11.
"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,
2
11
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.
"Commission" means the United States Securities and Exchange
Commission.
"Company" shall mean and include Litchfield Financial Corporation 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 Chairman of the Board,
Vice-Chairman of the Board, President or any Vice President and its Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary and delivered to the
Trustee.
"corporation" shall mean and include corporations, associations,
companies and business trusts.
"daily newspaper" shall mean The Wall Street Journal or another
newspaper in the English language of national 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 the date set forth on the cover page of
this Indenture.
"day" means a calendar day.
"Default" means any act or occurrence of the character specified in
SECTION 7.1, but excluding any notice or lapse of time, or both, specified
therein.
"Defaulted Interest" has the meaning specified in SECTION 2.3.
"Depositary" has the meaning specified in SECTION 2.6.
"Event of Default" means any act or occurrence of the character
specified in SECTION 7.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"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" means, with respect to any asset, the price which
could be negotiated in an arm's length free market transaction, for cash,
between a willing seller and a willing buyer,
3
12
neither of which is under pressure or compulsion to complete the transaction;
provided, however, that, except with respect to any asset or assets constituting
less than $3,000,000, the Fair Market Value shall be required to be determined
by the Board of Directors of the Company, acting in good faith, and shall be
evidenced by resolutions of the Board of Directors of the Company delivered to
the Trustee.
"Federal Bankruptcy Act" 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.
"Five Percent Limitation" has the meaning specified in SECTION 6.1.
"Fundamental Structural Change" means the occurrence of any one or more
of the following: (A) the Company shall consolidate with or merge into any other
corporation or partnership, or convey, transfer or lease all or substantially
all of its assets to any person, other than as part of a loan securitization or
sale entered into in the ordinary course of its business; (B) any person shall
consolidate with or merge into the Company pursuant to a transaction in which at
least a majority of the common stock of the Company then outstanding is changed
or exchanged or in which the number of shares of common stock issued by the
Company in the transaction to persons who were not stockholders of the Company
immediately prior to the transaction is greater than the number of shares
outstanding immediately prior to the transaction; (C) any person shall purchase
or otherwise acquire in one or more transactions beneficial ownership of fifty
percent (50%) or more of the common stock of the Company outstanding on the date
immediately prior to the last such purchase or other acquisition; (D) the
Company or any Subsidiary shall purchase or otherwise acquire in one or more
transactions during the 12 month period preceding the date of the last such
purchase or other acquisition an aggregate of twenty-five percent (25%) or more
of the common stock of the Company outstanding on the date immediately prior to
the last such purchase or acquisition; or (E) the Company shall make a
distribution of cash, property or securities to holders of common stock (in
their capacity as such) (including by means of dividend, reclassification or
recapitalization) which, together with all other such distributions during such
12 month period preceding the date of such distribution, has an aggregate fair
market value in excess of an amount equal to twenty-five percent (25%) of the
fair market value of the common stock of the Company outstanding on the date
immediately prior to such distribution.
"Global Note" or "Global Notes" means any Note or Notes issued in
global form.
"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 loan obligation; (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.
4
13
"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 Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"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 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx
00000.
"maturity" or "mature," when used with respect to any Note, means the
date on which the principal of such Note becomes due and payable as therein or
herein provided, whether at Stated Maturity or by declaration of acceleration,
call for redemption at the option of the Company pursuant to ARTICLE 5 or
presentment for repayment as provided in ARTICLE 6 hereof, or otherwise.
"Minimum Level" has the meaning specified in SECTION 3.11.
"Note" or "Notes" mean one or more of the notes comprising the
Company's issue of Notes issued, authenticated and delivered under this
Indenture or any indenture supplemental hereto creating one or more series of
additional notes.
"Notes Custodian" means the Trustee, as custodian with respect to any
Global Note, or any successor entity thereto.
"Note Register," "Note Co-Registrar" and "Note Registrar" have the
respective meanings specified in SECTION 2.6.
"Noteholder," "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.
"Notice of Default" has the meaning specified in SECTION 7.1.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, President or a Vice President and the Treasurer or an Assistant
Treasurer or 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 15.3 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.
5
14
Each such Opinion of Counsel shall include the statements provided for in
SECTION 15.3 if and to the extent required by the provisions of such Section.
"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 or redemption 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; provided, however, that in the case of redemption, any notice required
shall have been given or have been provided for to the satisfaction of the
Trustee, 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. 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
principal of, premium, if any, and interest on any Notes on behalf of the
Company.
"Permitted Investments" means obligations of, or guaranteed as to
interest and principal by, the United States Government, open market commercial
paper of any corporation incorporated under the laws of the United States of
America or any State thereof rated "prime-1" or its equivalent by Xxxxx'x
Investors Service, Inc. or "A-1" or its equivalent by Standard & Poor's
Corporation or bankers acceptances or certificates of deposit issued by
commercial banks organized under the laws of the United States of America or any
political subdivision thereof rated "Aa" or better by Xxxxx'x Investors Service,
Inc. or "AA" or better by Standard & Poor's Corporation and having a final
maturity of less than one year or instruments issued by investment companies
having a portfolio 90% or more consisting of the type and maturity described
above.
"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.
6
15
"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.
"Proceeding" means any suit in equity, action at law or other legal,
equitable, administrative or similar proceeding.
"Qualified Institutions" has the meaning specified in SECTION 6.2.
"Ratio" has the meaning specified in SECTION 3.11.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Period" has the meaning specified in SECTION 6.1.
"Redemption Register" has the meaning specified in SECTION 6.4.
"Regular Record Date" has the meaning specified in SECTION 2.3.
"Repurchase Date" has the meaning specified in SECTION 6.5.
"Required Rating" has the meaning specified in SECTION 6.5.
"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.
"Significant Subsidiary" means any Subsidiary of the Company the
consolidated assets of which constitute twenty percent (20%) or more of the
consolidated assets of the Company.
"Significant Subsidiary Disposition" means (A) the merger,
consolidation, conveyance or transfer of all or substantially all of the assets
of a Subsidiary, or (B) the issuance, sale, transfer, assignment, pledge or
other disposition of the capital stock of a Subsidiary or securities convertible
or exchangeable into shares of capital stock of such Subsidiary.
7
16
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to SECTION 2.3.
"Stated Maturity" when used with respect to any Note or any installment
of interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and
payable.
"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" means any
indenture hereafter duly authorized and entered into in accordance with the
provisions of this Indenture.
"Trustee" means The Bank of New York, 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 as 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
2.1 DESIGNATION, AMOUNT AND ISSUE OF NOTES. The Notes shall be
designated as set forth in one or more indentures supplemental hereto. Notes in
an aggregate principal amount of up to $100,000,000, to bear such rates of
interest, to mature at such time or times and to have such other provisions as
may be provided in this Indenture and in the applicable supplemental indenture,
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 Chairman of the Board, the
President or an Executive Vice President or any Vice President. Prior to such
authentication the Trustee shall be entitled to receive an executed supplemental
indenture, an Officers' Certificate and Opinion of Counsel satisfactory to the
Trustee.
8
17
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 set
forth in any supplemental indenture under which such Notes are issued. Any of
the Notes may have imprinted thereon such legends or endorsements as the officer
or 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 any supplemental indenture under which the Notes are issued,
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 to conform to usage. With respect to the Notes of
any particular series, the Company may incorporate in, add to or delete from the
general title of such Notes any words, letters or figures designed to
distinguish that series, pursuant to the applicable supplemental indenture or a
Certified Resolution.
2.3 DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES. The
Notes shall be issuable as registered Notes without coupons in denominations of
$1,000 and any integral multiple of $1,000, 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. Notes may be issued at a discount, and shall bear interest, as set
forth in the applicable supplemental indenture establishing the form of such
Note.
The term "Regular Record Date" as used with respect to an interest
payment date for any series of Notes shall mean such day or days as shall be
specified in any supplemental indenture pursuant to which the Notes are issued;
provided, however, that in the absence of any such provisions with respect to
any series of Notes, such term shall mean (1) the last day of the calendar month
preceding such interest payment date if such interest payment date is the
fifteenth day of a calendar month; or (2) the fifteenth day of the calendar
month preceding such interest payment date if such interest payment date is the
first day of a calendar month.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") 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 Interest 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 Interest 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 Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest 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 Interest 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
9
18
held in trust for the benefit of the persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest 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 Interest 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 Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest 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
Interest 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.
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 interest accrued and unpaid, and to
accrue which were carried by such other Note.
The principal of and the premium, if any, and the interest 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; provided, however, that interest on
any Notes may be payable, at the option of the Company, by check mailed to the
person entitled thereto as such person's address shall appear on the Note
Register.
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.
2.5 EXECUTION OF NOTES. Each Note shall be signed in the name and
on behalf of the Company by one or more 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
10
19
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.
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 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. The Trustee is hereby appointed as Notes Custodian
with respect to any Global Note(s) that may be issued under one or more
supplemental indentures.
The Depository Trust Company is hereby appointed as depositary (the
"Depositary") with respect to any Global Note(s) that may be issued under one or
more supplemental indentures.
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 hereof, 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, for a
like aggregate principal amount 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,
evidencing the same debt, and 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 13.5 not involving any transfer. No service
charge will be made for any such transaction.
The Company shall not be required to issue or to make registrations of
transfer or exchanges of Notes for a period of fifteen (15) days prior to the
date of mailing of any notice of redemption, and ending on the date of such
mailing. The Company shall not be required to issue or to make registrations of
transfer or exchanges of any Notes which have been selected for redemption in
whole
11
20
or in part, except in the case of any Note to be redeemed in part, for which the
Company shall register transfers and make exchanges of the portion thereof not
so to be redeemed.
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 10.2, be fully protected in relying on the
Note Register kept at the main office of the Trustee.
Any holder of a Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests in such Global Note may be
effected, only through a book-entry system maintained by the Depository (or its
agent), and that ownership of a beneficial interest in the Global Note shall be
required to be reflected in a book entry.
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 an equal
aggregate principal amount of definitive Notes of authorized denominations. 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.
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 8.1.
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 of like principal amount bearing
12
21
a number not contemporaneously outstanding, in exchange and substitution for and
upon surrender and cancellation of the mutilated Note or in lieu of and
substitution for the Note so destroyed, lost or stolen; provided, however, that
if any such mutilated, destroyed, lost or stolen Note shall have become or shall
be about to become due and payable, or shall have been selected or called for
redemption, 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.
2.11 AUTHENTICATION OF NOTES. Subject to the qualifications
hereinbefore set forth, the Notes to be issued hereby shall be substantially of
the tenor and effect set forth in the supplemental indenture providing for their
issuance, and no Notes shall be secured hereby or 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 manually 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.
2.12 SURRENDER AND CANCELLATION OF NOTES. All Notes surrendered for
payment, redemption, 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. The Trustee,
upon written request of the Company, shall deliver all canceled Notes held by it
to the Company at least annually.
13
22
2.13 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES. Any Global Note(s)
that may be issued under one or more supplemental indentures initially shall (i)
be registered in the name of the Depositary or the nominee of the Depositary and
(ii) be delivered to the Trustee as Notes Custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture or any supplemental indenture with respect
to any Global Note held on their behalf by the Depositary, or the Trustee as
Notes Custodian, or under any Global Note, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute legal owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein or in any supplemental indenture
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Note.
Transfers of a Global Note shall be limited to transfers of such Global
Note in whole, but not in part, to the Depositary, its successors and their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred in accordance with the applicable rules and procedures of the
Depositary and the provisions of SECTION 2.6 and SECTION 2.7.
The registered holder of a Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
2.14 CERTIFICATED NOTES. If the Depositary is at any time unwilling
or unable to continue as a depositary for any Global Note(s) that may be issued
under one or more supplemental indentures and a successor depositary is not
appointed by the Company within 90 days, the Company will issue certificated
Notes in exchange for such Global Notes. In connection with the execution and
delivery of such certificated Notes, the Trustee shall reflect on its books and
records a decrease in the principal amount of the relevant Global Note equal to
the aggregate principal amount of such certificated Notes and the Company shall
execute and the Trustee shall, upon receipt of a Company Order, authenticate and
deliver one or more certificated Notes in an equal aggregate principal amount.
Notes issued in exchange for a Global Note or any portion thereof shall
be issued as certificated Notes, shall have an aggregate principal amount equal
to that of such Global Note or portion thereof to be so exchanged, and shall be
registered in such names and be in such authorized denominations as the
Depositary shall designate. Any Global Note to be exchanged in whole shall be
surrendered by the Depositary to the Trustee. With respect to any Global Note to
be exchanged in part, either such Global Note shall be so surrendered for
exchange or, if the Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Note, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged, by means
of
14
23
an appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and deliver the Note
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
ARTICLE 3
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants as follows:
3.1 PAYMENT OF PRINCIPAL OF AND PREMIUM, IF ANY, AND INTEREST ON
NOTES. The Company will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Notes at the time
and place and in the manner provided in the Notes and this Indenture and any
supplemental indenture.
3.2 MAINTENANCE OF OFFICE OR AGENCY FOR REGISTRATION OF TRANSFER,
EXCHANGE AND PAYMENT OF NOTES. So long as any of the Notes shall remain
outstanding, the Company will maintain an office or agency, where the Notes may
be surrendered for exchange or registration of transfer as in this Indenture
provided, and where notices and demands to or upon the Company in respect to the
Notes may be served, and where the Notes may be presented or surrendered for
payment. The Company may also from time to time designate one or more other
offices or agencies where Notes may be presented or surrendered for any and all
such purposes and may from time to time rescind such designations. The Company
will give to the Trustee notice of the location of any such office or agency and
of any change of location thereof. In case the Company shall fail to maintain
any such office or agency or shall fail to give such notice of the location or
of any change in the location thereof, such surrenders, presentations and
demands may be made and notices may be served at the main office of the Trustee,
and the Company hereby appoints the Trustee its agent to receive at the
aforesaid office all such surrenders, presentations, notices and demands. The
Trustee will give the Company prompt notice of any change in location of the
Trustee's main office.
3.3 APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in SECTION 10.9, a Trustee, so that there
shall at all times be a Trustee hereunder.
3.4 PROVISION AS TO PAYING AGENT.
(a) If the Company appoints 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 agent shall undertake, subject to the provisions of
this SECTION 3.4,
15
24
(1) that it will hold all sums held by it as such agent
for the payment of the principal of or premium, if any, or interest on
the Notes in trust for the benefit of the holders of the Notes or the
Trustee,
(2) that it will give the Trustee notice of any failure
by the Company to make any payment of the principal of or premium, if
any, or interest on the Notes when the same shall be due and payable,
and
(3) that it will at any time during the continuance of
any Event of Default specified in SECTION 7.1, upon the written request
of the Trustee, deliver to the Trustee all sums so held in trust by it.
(b) If the Company does not act as its own paying agent, it will,
prior to each due date of the principal of or premium, if any, or interest on
any Notes, deposit with such paying agent a sum sufficient to pay the principal
or premium, if any, or interest so becoming due, such sum to be held in trust
for the benefit of the holders of Notes entitled to such principal of or
premium, if any, or interest, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
(c) If the Company acts as its own paying agent, it will, on or
before each due date of the principal of or premium, if any, or interest on the
Notes, set aside, segregate and hold in trust for the benefit of the persons
entitled thereto, a sum sufficient to pay such principal or premium or interest
so becoming due and will notify the Trustee of any failure to take such action.
(d) Anything in this SECTION 3.4 to the contrary notwithstanding,
the Company may, for the purpose of obtaining a satisfaction and discharge of
this Indenture in accordance with ARTICLE 11 hereof but only if and to the
extent permitted thereby, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this SECTION 3.4, such sums to be held by the Trustee upon the
trusts herein contained. 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) Anything in this SECTION 3.4 to the contrary notwithstanding,
the holding of sums in trust as provided in this SECTION 3.4 is subject to the
provisions of SECTION 15.2 hereof.
3.5 MAINTENANCE OF CORPORATE EXISTENCE. 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 that of each Subsidiary and the rights
(charter and statutory) and franchises of the Company and its Subsidiaries;
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 that the loss thereof is not
disadvantageous in any material respect to the holders of the Notes.
16
25
3.6 NOTICE OF DEFAULT.
(a) The Company will file with the Trustee, within forty-five (45)
days after the end of each fiscal quarter of the Company commencing with the
last day of the first fiscal quarter (based on a calendar year) following the
first issuance of Notes hereunder, an Officers' Certificate stating, as to each
signer thereof, that:
(1) a review of the activities of the Company during such
quarter and of performance under this Indenture and under any and all
supplemental indentures has been made under his supervision; and
(2) to the best of his knowledge, based on such review,
the Company has fulfilled all of its obligations under this Indenture
and under any and all supplemental indentures throughout such quarter,
or, if there has been any Default in the fulfillment of any such
obligation, specifying each such Default known to him and the nature
and status thereof.
(b) When any Default or Event of Default has occurred and is
continuing or if the trustee for or the holder of any other evidence of
Indebtedness of the Company gives any notice or takes any other action with
respect to a claimed default, the Company shall deliver to the Trustee by
registered or certified mail or facsimile transmission followed by hard copy an
Officers' Certificate specifying such Default, Event of Default, notice or other
action, the status thereof and what actions the Company is taking or proposing
to take with respect thereto, within ten business days after the Company knew or
should have known of its occurrence. This SECTION 3.6(b) shall not be
interpreted to require the Company to calculate the Ratio (as defined in SECTION
3.11) more often than is required pursuant to SECTION 3.11 below.
3.7 WILL PAY INDEBTEDNESS. The Company will pay or cause to be
paid all Indebtedness of the Company and of each Subsidiary (but, in the case of
Indebtedness of a Subsidiary on which the Company is not liable, the Company
shall be obligated so to do only to the extent that such Subsidiary's assets
shall be insufficient for the purpose), as and when same shall become due and
payable, and will observe, perform and discharge or cause to be observed,
performed or discharged in accordance with their terms all of the covenants,
conditions and obligations which are imposed on it by any and all mortgages,
indentures and other agreements evidencing or securing Indebtedness of the
Company or any Subsidiary or pursuant to which such Indebtedness is issued, so
as to prevent the occurrence of any act or omission which is a default
thereunder, and which remains uncured or is not waived for a period of thirty
(30) days beyond any applicable notice and/or cure period. The Company will
notify the Trustee of any breach of the covenants contained in this SECTION 3.7
within ten (10) days after the Company has knowledge of such breach.
3.8 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,
17
26
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 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.
3.9 MAINTENANCE OF PROPERTIES. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company or any Subsidiary from discontinuing the operation and maintenance of
any such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Company or of the Subsidiary concerned,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the holders of the Notes.
3.10 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).
3.11 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 (collectively, an "incurrence") any
Indebtedness unless as of and for the twelve (12) month period (each, a
"Calculation Period") ending on the date of the proposed incurrence of such
Indebtedness (a "Calculation Date"), and after giving effect to the proposed
incurrence and the application of the proceeds therefrom, (i) the Company is in
compliance with all the terms, conditions and provisions of this Indenture and
any supplemental indenture(s), and (ii) the ratio (the "Ratio") of (A) the
Company's earnings before deduction of taxes, depreciation, amortization and
interest expense (as shown by a PRO FORMA consolidated income statement of the
Company and its consolidated Subsidiaries) to (B) the aggregate amount of
interest paid on the Notes and all other Indebtedness
18
27
of the Company or its Subsidiaries during the relevant Calculation Period is
equal to or exceeds 2:1 (the "Minimum Level"). The Company further covenants
that it will maintain the Ratio at the Minimum Level for each twelve (12) month
period ending on each June 30 and December 31 subsequent to the date of the
first issuance of Notes hereunder and during any period Notes are outstanding
under the Indenture (and any such twelve (12) month period shall also be
considered a Calculation Period), whether or not there is an incurrence of
Indebtedness, and any failure to so maintain the Ratio at or above the Minimum
Level shall constitute a default hereunder. The Company will deliver to the
Trustee, within forty-five (45) days after the end of each Calculation Period,
an Officer's Certificate, which shall set forth the relevant calculations,
stating that the Company is, as of the relevant Calculation Date, in compliance
with the provisions of this SECTION 3.11.
3.12 WILL MAINTAIN OFFICE. The Company will maintain an office of
the Company, which shall be and remain the principal place of business of the
Company, in Williamstown, Massachusetts; provided, however, that upon at least
thirty (30) days' prior written notice to the Trustee, the Company may move such
office and records to any other address as set forth in such notice.
3.13 LIMITATION ON DIVIDENDS AND OTHER PAYMENTS. The Company will
not declare or pay any of the following (each, a "Restricted Payment"): (i) any
dividend or other distribution of property or assets other than a dividend
payable solely in shares of capital stock of the Company; (ii) a repayment or
defeasance of any Indebtedness subordinate in right of payment of interest or
principal to the Notes (except so long as the Notes are not in default,
scheduled payments of principal and interest may be made in accordance with the
terms of such subordinated Indebtedness); (iii) an exchange of capital stock of
the Company for an instrument(s) evidencing Indebtedness of the Company incurred
after the last day of the month immediately preceding the date of the first
issuance of Notes hereunder or (iv) any repurchase by the Company of its capital
stock. Notwithstanding the foregoing, the Company (and any of its Subsidiaries)
may declare or pay a Restricted Payment, if such Restricted Payment when
aggregated with all other Restricted Payments made by the Company or any
Subsidiary after the last day of the month immediately preceding the date of the
first issuance of Notes hereunder, is less than the sum of (A) $2,000,000, plus
(B) forty-five percent (45%) of the Company's (and its Subsidiaries') cumulative
net income earned during the period commencing on the last day of the month
immediately preceding the date of the first issuance of Notes hereunder and
ending on the date on which the Restricted Payment is to be made plus (C)
19
28
the cumulative cash and non-cash proceeds to the Company of all public or
private offerings of its capital stock during such period; provided that,
notwithstanding the foregoing, the Company shall make no Restricted Payment if
(i) there exists a default hereunder, or (ii) the making of the Restricted
Payment would cause the Company not to be in compliance with the terms,
conditions and provisions of the Indenture, any supplemental indenture or any
other indenture or loan agreement to which the Company is a party.
ARTICLE 4
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
4.1 NOTEHOLDER LISTS, ETC.
(a) The Company will furnish or cause to be furnished to the
Trustee, monthly, not more than fifteen (15) days after each Regular Record Date
for any series of Notes a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of Notes of such series 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 subsection (a) of this SECTION 4.1. The
Trustee may destroy any list furnished to it as provided in subsection (a) of
this SECTION 4.1, upon receipt of a new list so furnished.
(c) In case three (3) or more holders of Notes of any series
(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 that the Applicants desire to communicate with other
holders of Notes of such series with respect to their rights under this
Indenture, any supplemental 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 subsection (b) of this SECTION 4.1; or
(2) inform such Applicants as to the approximate number
of holders of Notes of such series whose names and addresses appear in
the information preserved at the time by
20
29
the Trustee, in accordance with the provisions of subsection (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 of such series whose name and
address appears in the information preserved at the time by the Trustee
in accordance with the provisions of subsection (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 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 the 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, the
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 subsection (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 subsection (c).
4.2 REPORTS BY COMPANY. The Company covenants and agrees:
(a) To file with the Trustee within fifteen (15) days after the
Company is required to file the same with the 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 the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents, or reports
pursuant to either of such Sections, then the Company will file with the Trustee
and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents, and reports which may be required pursuant to Section 13
of the Exchange
21
30
Act in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) To file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the 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;
(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 subsection (a) or subsection (b) as may be required by the rules and
regulations promulgated by the 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
subsection (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 subsection (a), (b) or (c).
Each certificate furnished to the Trustee pursuant to the provisions of
this SECTION 4.2 shall conform to the requirements of SECTION 15.3 hereof.
4.3 REPORTS BY TRUSTEE. The Trustee shall as provided in TIA
Section 313(c), if required thereunder, transmit within sixty (60) days after
January 1, 1999 and each January 1 thereafter, a brief report if required
pursuant to TIA Section 313(a) to the Noteholders of any series of Notes then
outstanding. A copy of each such report shall, at the time of such transmission
to the Noteholders, be filed by the Trustee with each stock exchange upon which
the Notes are listed and also with the Commission. The Company will notify the
Trustee if any Notes are listed.
ARTICLE 5
REDEMPTION OF NOTES AT COMPANY'S OPTION
5.1 ELECTION BY COMPANY TO REDEEM NOTES. The Notes of any series
shall be redeemable at any time prior to the Stated Maturity thereof, upon
notice as provided in this ARTICLE 5, as a whole at any time, or in part from
time to time (but only in principal amounts of $1,000 or any integral multiple
thereof), at the option of the Company, commencing on the date or dates set
forth in the applicable supplemental indenture for each series of Notes, on not
less than 30 nor more than 60 days' notice given as provided in the Indenture or
any applicable supplemental indenture upon payment of the then applicable
redemption price (expressed in percentages of the principal amount) set forth in
the applicable supplemental indenture, together in each case with accrued and
unpaid interest to the date fixed for redemption, all subject to the conditions
more fully set forth in the applicable supplemental indenture.
22
31
The election of the Company to redeem any Notes shall be evidenced by a
Certified Resolution. Whenever any of the Notes outstanding are to be redeemed
pursuant to this SECTION 5.1, the Company shall give the Trustee at least sixty
(60) days' written notice (or such shorter period of time as is acceptable to
the Trustee) prior to the Redemption Date of such Redemption Date and of the
principal amount of Notes to be redeemed.
5.2 REDEMPTION OF PART OF NOTES. In case of the redemption of less
than all of the outstanding Notes of any series, the Notes to be redeemed shall
be selected by the Trustee by lot or any other method deemed reasonable by the
Trustee, not more than sixty (60) days prior to the Redemption Date, from the
outstanding Notes not previously called for redemption, which method may provide
for the selection for redemption of portions (equal to $1,000 or any integral
multiple thereof) of the principal amount of such series of Notes of a principal
amount larger than $1,000.
In the case of any partial redemption, the Trustee shall promptly
notify the Company in writing of the serial numbers (and, in the case of any
Note which is to be redeemed in part only, the portion of the principal amount
thereof to be redeemed) of the Notes selected for redemption.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal of such Note which has been or is to be redeemed.
5.3 NOTICE OF REDEMPTION. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than thirty (30) nor more
than sixty (60) days prior to the Redemption Date, to each holder of Notes to be
redeemed, at his last address appearing in the Note Register.
All notices of redemption shall include the CUSIP number of the
securities to be redeemed and shall state:
(a) The Redemption Date;
(b) The redemption price plus accrued interest, if any;
(c) If less than all outstanding Notes of any series are
to be redeemed, the serial numbers (and, in the case of any Note which
is to be redeemed in part only, the portion of the principal amount
thereof to be redeemed) of the Notes to be redeemed;
(d) That on the Redemption Date the redemption price of
each of the Notes to be redeemed will become due and payable, and that
interest thereon shall cease to accrue from and after said date; and
23
32
(e) The place where such Notes are to be surrendered for
payment of the redemption price, which shall be the office or agency of
the Company in the place of payment.
Notice of redemption of Notes to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Failure to give notice of redemption, or any defect therein, to any
holder of any Note selected for redemption shall not impair or affect the
validity of the redemption of any other Note.
5.4 DEPOSIT OF REDEMPTION PRICE. On or before 10:00 a.m. on any
Redemption Date, the Company shall deposit with the Trustee or with a paying
agent (or, if the Company is acting as its own paying agent, segregate and hold
in trust as provided in SECTION 3.4(C) hereof) an amount of money sufficient to
pay the redemption price of all principal of, and (unless such Redemption Date
is an Interest Payment Date) accrued interest on, the Notes which are to be
redeemed on that date.
5.5 DATE ON WHICH NOTES CEASE TO BEAR INTEREST, ETC. Notice of
redemption having been given as aforesaid, the Notes so to be redeemed shall, on
the Redemption Date, become due and payable at the redemption price therein
specified and from and after such date (unless the Company shall default in the
payment of the redemption price) such Notes shall cease to bear interest. Upon
surrender of any such Note for redemption in accordance with said notice, such
Note shall be paid by the Company at the redemption price together with accrued
interest thereon to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the holders of such Notes, or one or more predecessor Notes,
registered as such on the relevant Regular Record Dates according to the terms
and provisions of SECTION 2.3 hereof.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal, and premium, if any, shall, until paid,
bear interest from the Redemption Date at the rate borne by the Note.
Any Note which is to be redeemed only in part shall be surrendered at
the office or agency designated pursuant to SECTION 3.2 hereof (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
holder of such Note, without service charge, a new Note or Notes of such series
of any authorized denomination or denominations as requested by such holder in
an aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Note so surrendered.
5.6 ALL NOTES DELIVERED. All Notes redeemed pursuant to
SECTION 5.1 hereof shall be canceled by the Trustee in accordance with its
standard procedures, and the Trustee shall deliver such canceled Notes to the
Company.
24
33
ARTICLE 6
REDEMPTION OF NOTES AT HOLDER'S OPTION
6.1 REDEMPTION RIGHT AT HOLDER'S OPTION.
(a) Unless pursuant to the terms of SECTION 7.1 the Notes have
been declared due and payable prior to their maturity by reason of an Event of
Default and such Event of Default has not been waived and such declaration has
not been rescinded or annulled, a holder has the right to present Notes for
payment prior to their maturity, and the Company will redeem the same (or any
portion of the principal amount thereof which is $1,000 or an integral multiple
thereof, as the holder may specify) subject to the limitations that the Company
will have no obligation to redeem Notes pursuant to this Section 6.1 in excess
of the following annual maximum amounts, or the applicable annual maximum
amounts set forth in any applicable supplemental indenture (collectively, the
"Annual Amount Limitations") of (A) $25,000 in aggregate principal amount per
holder for any Redemption Period (as defined below) and (B) for any Redemption
Period, an aggregate principal amount for all Notes submitted for redemption
equal to five percent (5%) of the aggregate original principal amount of the
Notes of all series theretofore issued under the Indenture (the "Five Percent
Limitation"). Notes submitted for redemption pursuant to this SECTION 6.1,
except for Notes submitted for redemption following the death of a holder, must
be submitted on or prior to the date that is sixty (60) days prior to the end of
the applicable Redemption Period, for redemption on the last day of such
Redemption Period. If the $25,000 per holder limitation has been reached and the
Five Percent Limitation has not been reached, if Notes have been properly
presented for payment, each in an aggregate principal amount exceeding $25,000,
the Company will redeem such Notes in order of their receipt (except Notes
presented for payment in the event of death of a holder, which will be given
priority in order of their receipt), up to the aggregate limitation of five
percent (5%) of the aggregate principal amount of the Notes of all series issued
under this Indenture, notwithstanding the $25,000 limitation. "Redemption
Period" shall mean the period of time beginning with the date of issuance of
Notes hereunder and ending with the first day of the thirteenth month following
such date, and every twelve (12) month period thereafter.
(b) Subject to the Annual Amount Limitations, the Company will, at
any time upon the death of any holder, redeem Notes within sixty (60) days
following receipt by the Trustee of a written request therefor from such
holder's personal representative, or surviving joint tenant(s), tenant by the
entirety or tenant(s) in common.
6.2 REDEMPTION PROCEDURE. Notes presented for redemption pursuant
to SECTION 6.1(a) or (b) will be redeemed in order of their receipt by the
Trustee, except that Notes presented for payment in the event of death of a
holder pursuant to SECTION 6.1(b), will be given priority in order of their
receipt, over other Notes. Notes not redeemed in any such period because they
have not been presented on or prior to the date that is sixty (60) days prior to
the end of the applicable Redemption Period or because of the Annual Amount
Limitations will be held in order of their receipt for redemption during the
following twelve (12) month period(s)
25
34
until redeemed, unless sooner withdrawn by the holder. Holders of Notes
presented for redemption shall be entitled to and shall receive scheduled
payments of interest thereon on scheduled Interest Payment Dates until their
Notes are redeemed.
Notes may be presented for redemption by delivering to the Trustee: (A)
a written request for redemption, in a form satisfactory to the Trustee, signed
by the registered holder(s) or his or her duly authorized representative, (b)
the Note to be redeemed, free and clear of any liens or encumbrances of any
kind, and (C) in the case of a request made pursuant to SECTION 6.1(b),
appropriate evidence of such death and, if made by a representative of a
deceased holder, appropriate evidence of authority to make such request. No
particular forms of request for redemption or authority to request redemption
are necessary (other than those required of a representative of a deceased
holder). The price to be paid by the Company for all Notes or portions thereof
presented to it pursuant to the provisions described in this ARTICLE 6 is 100%
of the principal amount thereof to be redeemed, plus accrued but unpaid interest
on such principal amount to the date of payment. Any acquisition of Notes by the
Company other than by redemption at the option of any holder pursuant to SECTION
6.1 shall not be included in the computation of Annual Amount Limitations for
any period; provided, however, that Notes acquired by the Company by redemption,
pursuant to Section 6.1, at the option of a holder that is a Subsidiary, shall
not be included in the computation of Annual Amount Limitations for any period.
For purposes of SECTIONS 6.1(a) AND (b) and this SECTION 6.2, (i) a
Note held in tenancy by the entirety, joint tenancy or tenancy in common will be
deemed to be held by a single holder, (ii) the death of a tenant by the
entirety, joint tenant or tenant in common will be deemed the death of a holder,
(iii) a person who is entitled to substantially all of the beneficial interests
of ownership of a Note will be deemed to be the holder, if such beneficial
interest can be established to the satisfaction of the Trustee, and (iv) the
death of such person will be deemed to be the death of the holder, regardless of
the registered holder. For purposes of a holder's request for redemption and a
request for redemption on behalf of a deceased holder, such beneficial interest
shall be deemed to exist in cases of street name or nominee ownership, ownership
under the Uniform Gifts to Minors Act, community property or other joint
ownership arrangements between a husband and wife (including individual
retirement accounts or Xxxxx plans maintained solely by or for the holder or
decedent, or by or for the holder or decedent and his or her spouse), and trusts
and certain other arrangements where a person has substantially all of the power
to sell, transfer or otherwise dispose of a Note and the right to receive the
proceeds therefrom, as well as interest and principal payable with respect
thereto.
In the case of Notes registered in the names of banks, trust companies
or broker-dealers who are members of a national securities exchange or the
National Association of Securities Dealers, Inc. ("Qualified Institutions"), the
$25,000 limitation shall apply to each beneficial owner of Notes held by a
Qualified Institution and the death of such beneficial owner shall entitle a
Qualified Institution to seek redemption of such Notes as if the deceased
beneficial owner were the record holder. Such Qualified Institution, in its
request for redemption on behalf of such beneficial owners, must submit
evidence, satisfactory to the Trustee, that it holds Notes on behalf of such
beneficial owner and must certify that the aggregate amount of requests for
redemption tendered by such Qualified Institution
26
35
on behalf of each beneficial owner in the initial period or in any subsequent
twelve (12) month period does not exceed $25,000.
In the case of any Notes which are presented for redemption in part
only, upon such redemption the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the holder of such Notes, without
service charge, a new Note(s), of any authorized denomination or denominations
as requested by such holder, in aggregate principal amount equal to the
unredeemed portion of the principal of the Notes so presented.
Nothing herein shall prohibit the Company from redeeming, in acceptance
of tenders made pursuant hereto, Notes in excess of the principal amount that
the Company is obligated to redeem, nor from purchasing any Notes in the open
market. However, the Company may not use any Notes purchased in the open market
as a credit against its redemption obligations hereunder.
6.3 WITHDRAWAL. Any Notes presented for redemption at the option
of the holder may be withdrawn by the person(s) presenting the same upon
delivery of a written request for such withdrawal to the Trustee (A) in cases
other than by reason of death of a holder on or prior to the date that is sixty
(60) days prior to the end of the applicable Redemption Period, or (B) prior to
the issuance of a check in payment thereof or any other form of payment
authorized by the Indenture in the case of Notes presented by reason of the
death of a holder.
6.4 REDEMPTION REGISTER. The Trustee shall maintain at its main
office a register (the "Redemption Register") in which it shall record, in order
of receipt, all requests for redemption received by the Trustee under SECTION
6.2. Unless withdrawn, all such requests shall remain in effect during the
period in which they are received and thereafter from period to period, until
the Notes which are the subject of such request have been redeemed.
6.5 REDEMPTION UPON FUNDAMENTAL STRUCTURAL CHANGE OR SIGNIFICANT
SUBSIDIARY DISPOSITION. In the event that there shall occur a Fundamental
Structural Change with respect to the Company, or in the event of an occurrence
of a Significant Subsidiary Disposition, then each holder of each series of
Notes shall have the right, at the holder's option, to require the Company to
redeem such holder's Notes, including any portion thereof which is $1,000 or any
integral multiple thereof on the date (the "Repurchase Date") that is
seventy-five (75) days after the occurrence of the Fundamental Structural Change
or Significant Subsidiary Disposition at the redemption price of 100% of the
principal amount thereof or portion thereof plus accrued but unpaid interest to
the date of payment, unless on or before the date that is forty (40) days after
the occurrence of the Fundamental Structural Change or Significant Subsidiary
Disposition, the Notes in such series have received a rating of BBB- or better
by Standard & Poor's Corporation or Duff & Xxxxxx Credit Rating Co., Inc. or
Baa3 or better by Xxxxx'x Investors Service, Inc. (either, a "Required Rating").
Exercise of this redemption option by a holder is irrevocable. The Company's
obligation to redeem the Notes pursuant to this SECTION 6.5 shall not be subject
to the Annual Amount Limitations.
27
36
If a Fundamental Structural Change or Significant Subsidiary
Disposition occurs, unless the Notes have received a Required Rating, the
Company promptly, but in any event within three (3) business days after
expiration of the forty (40) day period referenced above, shall give notice to
the Trustee, who shall promptly, but in any event within five (5) days of
receipt of notice from the Company, notify the Noteholders, of the occurrence of
such Fundamental Structural Change or Significant Subsidiary Disposition, of the
date before which a holder must notify the Trustee of such holder's intention to
exercise the redemption option, which date shall be not more than three (3)
business days prior to the Repurchase Date and of the procedure which such
holder must follow to exercise such right. To exercise the redemption, the
holder of a Note or Notes must deliver to the Trustee on or before the
Repurchase Date: (A) written notice of such holder's election to redeem pursuant
to this SECTION 6.5; in form satisfactory to the Trustee, signed by the
registered holder(s) or his duly authorized representative and (B) the Note or
Notes to be redeemed, free and clear of any liens or encumbrances of any kind.
In the case of any Notes which are presented for redemption in part
only, upon such redemption the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the holder of such Notes, without
service charge, a new Note(s), of any authorized denomination or denominations
as requested by such holder, in aggregate principal amount equal to the
unredeemed portion of the principal of the Notes so presented.
6.6 REDEMPTION OF NOTES SUBJECT TO ARTICLE 5. In the case of any
Notes or portion thereof which are presented for redemption pursuant to this
ARTICLE 6 and which have not been redeemed at the time the Company gives notice
of its election to redeem Notes pursuant to ARTICLE 5, such Notes or portion
thereof shall first be subject to redemption pursuant to ARTICLE 5 and if any
such Notes or portion thereof are not redeemed pursuant to ARTICLE 5 they shall
remain subject to redemption pursuant to ARTICLE 6.
28
37
ARTICLE 7
REMEDIES OF TRUSTEE AND NOTEHOLDERS UPON DEFAULT
7.1 DEFINITION OF DEFAULT AND EVENT OF DEFAULT. The following
events are hereby defined for all purposes of the Indenture and any supplemental
indentures (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 pay the principal of or the premium, if any, on any
Note as and when the same shall become due and payable at maturity; or
(b) Failure to pay any installment of interest upon any Note as
and when the same shall have become due and payable, and continuance of such
default for a period of five (5) days; or
(c) Default in the meeting or satisfaction of any redemption
payment with respect to any of the Notes as and when the same shall become due
and payable, and continuance of such default for a period of five (5) days; or
(d) The entry of a decree or order by a court or regulatory
authority having jurisdiction in the premises adjudging the Company or any
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Subsidiary under the Federal Bankruptcy Act or any other
applicable Federal or State law, or appointing a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of the Company or any
Subsidiary, or ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
sixty (60) consecutive days; or
(e) The institution by the Company or any Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Act or any other applicable Federal or State law,
or the consent by it to the filing of any such petition or to the appointment of
a receiver, liquidator, assignee, trustee or sequestrator (or other similar
official) of the Company or any Subsidiary, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due, or the taking of action by the
Company or any Subsidiary in furtherance of any such action; or
(f) Default in the performance, or breach, of any covenant or
warranty of the Company in the Indenture or any supplemental indenture (other
than a covenant or warranty a default in whose
29
38
performance or whose breach is elsewhere specifically dealt with in this
SECTION 7.1), and continuance of such default or breach for a period of thirty
(30) days after there has been given, by registered or certified mail, to the
Company by the Trustee, or to the Trustee and the Company by the holders of at
least ten percent (10%) in principal amount of the outstanding Notes affected,
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(g) An event of default as defined in any mortgage, indenture or
instrument, under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company, whether such Indebtedness now exists
or shall hereafter be created, shall happen and shall result in such
Indebtedness in an aggregate principal amount in excess of $1,000,000 becoming
or being declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not be rescinded or annulled
within ten (10) days after written notice to the Company from the Trustee, or to
the Trustee and the Company from the holders of not less than twenty-five
percent (25%) in aggregate principal amount of the Notes then outstanding.
7.2 TRUSTEE TO GIVE NOTEHOLDERS NOTICE OF DEFAULTS. The Trustee
shall, within ninety (90) days after the occurrence thereof, give to (i) the
Noteholders, as their names and addresses appear in the Note Register, (ii) such
holders of the Notes who have, within the last two (2) years preceding the
mailing of such notice, filed their names and addresses with the Trustee for
that purpose and (iii) such holders of the Notes whose names and address are
provided to the Trustee in accordance with Section 312 of the TIA, notice, by
first-class mail, of all defaults known to the Trustee, unless such defaults
shall have been cured or waived before the giving of such notice (the term
"Defaults" for the purposes of this SECTION 7.2 being hereby defined to be the
events specified in subdivisions (a), (b), (c), (d), (e), (f) and (g) of
SECTION 7.1 hereof, not including any periods of grace provided for in said
subdivisions and irrespective of the mailing of any written demand specified in
subdivisions (f) and (g) but in the case of any default as specified in
subdivisions (b) and (c) of SECTION 7.1 hereof, no such notice shall be given
until at least ten (10) days after the occurrence thereof, and in the case of
any default as specified in subdivisions (f) and (g) of SECTION 7.1 hereof, no
such notice shall be given until at least thirty (30) days after the occurrence
thereof); provided, however, that except in the case of default in the payment
of the principal of or the premium, if any, or the interest on any of the
Notes, 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.
7.3 DECLARATION OF PRINCIPAL AND ACCRUED INTEREST DUE UPON
DEFAULT; HOLDERS OF SPECIFIED PERCENTAGE OF NOTES MAY WAIVE DEFAULT DECLARATION.
If an Event of Default occurs and is continuing, the Trustee may, and the
holders of not less than twenty-five percent (25%) in principal amount of the
Notes at the time outstanding under the Indenture may, by notice in writing
given to the Company (and to the Trustee if such notice be given by Noteholders)
declare the principal of all of the Notes and the interest accrued thereon
immediately due and payable, and such principal and interest shall thereupon
become and be immediately due and payable; subject, however,
30
39
to the right of the holders of 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 with
interest upon overdue installments of interest (to the extent that payment of
such interest is enforceable under applicable law) at the interest rate per
annum applicable to the Notes and the principal and premium, if any, of all
outstanding Notes which shall have become due otherwise than by acceleration
under this SECTION 7.3 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, and all other indebtedness secured hereby,
except the principal of any Notes not then due by their terms and except
interest accrued on such Notes since the last applicable Interest Payment Date,
shall be paid, or the amount thereof shall be paid to the Trustee for the
benefit of those entitled thereto. 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.
7.4 POWER OF TRUSTEE TO PROTECT AND ENFORCE RIGHTS. Upon the
occurrence of one or more Events of Default, 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 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 be continuing as aforesaid, subject to SECTIONS 10.2 and 10.5, it
shall be the duty of the Trustee upon being indemnified as provided in
SECTION 7.10, to exercise 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.
7.5 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
31
40
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.
7.6 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.
7.7 ACTIONS TAKEN BY TRUSTEE UPON EVENT OF DEFAULT.
(a) PAYMENT OF PRINCIPAL AND INTEREST TO TRUSTEE UPON OCCURRENCE
OF CERTAIN DEFAULTS; JUDGMENT MAY BE TAKEN BY TRUSTEE. The Company covenants
that (1) in case default shall be made in the payment of any installment of
interest upon any of the Notes as and when the same shall become due and
payable, and such default shall have continued for a period of two (2) business
days, or (2) in case default shall be made in the payment of the principal of,
and premium, if any, on, any of the Notes as and when the same shall have become
due and payable at maturity, 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 premium, if any, and interest, with interest upon the overdue
principal, and premium, if any, and (to the extent that payment of such interest
is enforceable under applicable law) upon the overdue installments of interest
at the respective applicable rates borne by the Notes; 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
32
41
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 ARTICLE 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 principal of and the premium, if any, and the
interest on the outstanding Notes, with interest on the overdue
principal and (to the extent that payment of such interest is
enforceable under applicable law) on overdue installments of interest
at the interest rate per annum applicable to the particular series of
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 principal, premium and interest,
without preference or priority as to any outstanding series of Notes
over any other outstanding series of Notes or of principal, premium, if
any, or interest over principal, premium, if any, or interest, or of
any installment of interest over any other installment of interest,
upon presentation of such Notes and their surrender if fully paid, or
for proper notation if only partially paid.
Third. Any surplus thereof remaining to the Company, its
successors or assigns or to whosoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
7.8 POSSESSION OF NOTES UNNECESSARY IN ACTION BY TRUSTEE. All
rights of action and claims under the Indenture or any supplemental 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.
7.9 TRUSTEE MAY FILE NECESSARY PROOFS. The Trustee, (irrespective
of whether the principal of any 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 any series of the Notes shall then be due and payable and irrespective of
whether the
33
42
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 principal and interest (with
interest upon such overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, upon overdue installments of
interest at the interest rate per annum applicable to the particular series of
Notes) and any premium which may be or become owing and unpaid in respect of the
Notes 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 10.7.
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 thereof, or to authorize the Trustee, to vote in
respect of the claim of any Noteholder in any such proceeding.
7.10 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 the 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, including
the appointment of a receiver or trustee, 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
34
43
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.
7.11 RIGHT OF NOTEHOLDER TO RECEIVE AND ENFORCE PAYMENT NOT
IMPAIRED. Notwithstanding any other provision of the Indenture, the right of any
holder of any Note to receive payment of the principal of, premium, if any, and
interest on such Note, on or after the respective Stated Maturities expressed in
such Note, or to institute suit for the enforcement of any such payment on or
after such respective Stated Maturities, 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.
7.12 COURT MAY REQUIRE UNDERTAKING TO PAY COSTS. All parties to the
Indenture agree, and each holder of any Note by his or her acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under the 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 an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but to the extent permitted by law the provisions of this
SECTION 7.12 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 twenty-five percent (25%) in aggregate principal amount of the
outstanding Notes, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Note on or after the respective Stated Maturities expressed in such Note
(or, in the case of redemption, on or after the Redemption Date).
7.13 UNENFORCEABLE PROVISION INOPERATIVE. To the extent that any
provision of this ARTICLE 7 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 the Indenture.
7.14 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.
35
44
7.15 NOTEHOLDERS MAY WAIVE CERTAIN DEFAULTS. The holders of not
less than the required percentage in principal amount of the outstanding Notes
specified in SECTION 7.3 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 principal of (or premium, if any) or
interest on any Note, or
(b) in respect of a covenant or provision hereof which under
ARTICLE 13 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 the Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
ARTICLE 8
EVIDENCE OF RIGHTS OF NOTEHOLDERS
AND OWNERSHIP OF NOTES
8.1 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 principal, premium, if any, and interest on such Note 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 8.1 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 9
CONSOLIDATION, MERGER AND SALE
9.1 COMPANY MAY MERGE, CONSOLIDATE, ETC., UPON CERTAIN TERMS. The
Company covenants that it will not merge or consolidate with any other
corporation or 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 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 principal of and premium, if any, and interest on all the Notes, according
to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture and any applicable supplemental
indenture to
36
45
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.
9.2 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 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 Litchfield Financial Corporation 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 or any supplemental indenture prescribed, the
Trustee shall authenticate and shall deliver any Notes which previously shall
have been signed and delivered by the officer or 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.
9.3 ARTICLE 9 SUBJECT TO THE PROVISIONS OF SECTION 6.5.
Notwithstanding the foregoing, the transactions contemplated by ARTICLE 9 are
subject to the redemption provisions of SECTION 6.5, if applicable.
ARTICLE 10
CONCERNING THE TRUSTEE
10.1 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
37
46
SECTION 10.1 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 10.1, it shall resign immediately
in the manner and with the effect hereinafter specified in this ARTICLE 10.
10.2 ACCEPTANCE OF TRUST. The Trustee accepts the trusts hereby
created upon the terms and conditions in this Indenture and any supplemental
indenture(s) specified, to all of which the Company and the holders of
outstanding Notes by their acceptance thereof agree:
(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 any supplemental indenture(s), and no
implied covenants or obligations shall be read into this
Indenture or any supplemental indenture(s) 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 and any
supplemental indenture(s); 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 and any supplemental indenture(s).
(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 any supplemental indenture, and use
the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture or any supplemental
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 subsection (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
38
47
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 or any supplemental
indenture;
(4) none of the provisions contained in this
Indenture or any supplemental 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;
and
(5) the permissive right of the Trustee to do
things enumerated in this Indenture and any supplemental
indenture(s) 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 and any supplemental indenture(s) relating
to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
10.3 DISCLAIMER. The recitals contained herein, in the Notes and in
any supplemental indenture (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, any
supplemental 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.
10.4 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 10.9
and 10.10, 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.
10.5 TRUSTEE MAY RELY ON CERTIFICATES, ETC. To the extent permitted
by SECTION 10.2 hereof:
(a) The Trustee may conclusively 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;
39
48
(b) The Trustee may consult with counsel of its
selection, who may be of counsel to the Company, and the 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 10.5(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 bond or
surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(i) Except with respect to Sections 7.1(a), (b) or (c) or
the Company's failure to give notice as required by the terms of the
Indenture to the Trustee, the Trustee shall not be charged with
knowledge of any Event of Default with respect to the Notes unless
either (1) a Responsible Officer of the Trustee shall have actual
knowledge of the Event of Default or (2) written notice of such Event
of Default shall have been given to a Responsible Officer of the
Trustee by the Company or any other obligor on the Notes or by any
Noteholder and such notice references the Notes and this Indenture and
any applicable supplemental indenture.
40
49
10.6 MONEY HELD IN TRUST NOT REQUIRED TO BE SEGREGATED. Subject to
the provisions of SECTION 15.2 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.
10.7 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, such compensation as separately agreed in writing
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 and under
any supplemental indenture(s), 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 or
any supplemental 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 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 the costs and expenses of 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, the Trustee shall be entitled, in priority to the
holders of the Notes, to receive 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.
41
50
As security for the performance of the obligations of the Company under
this SECTION 10.7, the Trustee shall have a lien prior to the Notes upon all
property and funds held or collected by the Trustee or any predecessor Trustee
as such, except funds expressly designated and held in trust for the payment of
principal of, premium, if any, or interest on the Notes. The Trustee's right to
receive payment of any amounts due under this SECTION 10.7 shall not be
subordinate to any other liability or indebtedness of the Company.
10.8 CONFLICT OF INTEREST.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this SECTION 10.8, 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 10.
(b) In the event that the Trustee shall fail to comply
with the provisions of the preceding subsection (a) of this
SECTION 10.8, the Trustee shall within ten (10) days after the
expiration of such ninety (90) day period transmit notice of such
failure to the Noteholders by first-class mail, postage prepaid, to
each holder of Notes at his last address appearing in the Note
Register.
(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 7.1 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 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 of proving, on application to the
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 obligor upon the Notes
or an underwriter for the Company;
42
51
(3) the Trustee directly or indirectly controls
or is directly or indirectly controlled by or is under direct
or indirect common control with the Company or 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 agent, fiscal agent, escrow agent
or depositary or in any other similar capacity or, subject to
the provisions of paragraph (1) of this subsection (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 subsection (c) of this
SECTION 10.8 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 securities of
an underwriter for the Company;
43
52
(7) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default (as hereinafter in this subsection (c) of this
SECTION 10.8 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 subsection (c) of this
SECTION 10.8 defined), ten percent (10%) or more of any class
of securities 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 the date of any Default
on the Notes, or any anniversary of such Default so long as
such Default remains uncured 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 subsection (c). As to any such securities of
which the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence
shall not apply for a period of two (2) 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 the dates of any Default on
the Notes and annually in each succeeding year that the Notes
remain in Default, the Trustee shall make a check of its or
his holdings of such securities in any of the above-mentioned
capacities as of the anniversary of such Default. If the
Company fails to make payment in full of principal or interest
upon the Notes when and as the same becomes due and payable,
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 subsection
(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 subsection (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 subsection (c).
For the purposes of clauses (6), (7), (8) and (9) of this subsection
(c) only, (a) the terms "security" and "securities" shall include only such
securities as are generally known as corporate
44
53
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 10.8 shall be calculated in
accordance with the following provisions:
(1) A specified percentage of the voting
securities of the Trustee, the Company or any other person
referred to in this SECTION 10.8 (each of whom is referred to
as a "person" in this subsection (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 votes 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:
(i) securities of an issuer held in a
sinking fund relating to securities of the issuer of
the same class;
(ii) 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;
45
54
(iii) 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
(iv) 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 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 10.8, 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.
46
55
(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.
10.9 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 10 shall
become effective until the acceptance of appointment by the successor
Trustee under this SECTION 10.9 and SECTION 10.10.
(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 for
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. 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
removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with
SECTION 10.8 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,
(2) the Trustee shall cease to be eligible under
SECTION 10.1 and shall fail to resign after written request
therefor by the Company or by any such Noteholder, or
47
56
(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 purpose 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 7.13, 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 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.
10.10 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. 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.
48
57
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 10 to the extent operative.
10.11 CASH, SECURITIES, ETC. TO BE HELD BY TRUSTEE. Whenever any
moneys, debentures, shares of stock or other obligations are, under any
provisions of this Indenture or any supplemental 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 10.11 shall be deemed to affect or impair any power or
right conferred by any provision of this Indenture or any supplemental 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.
10.12 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 10, 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.
10.13 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 and any supplemental
indenture(s). 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 10.13 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 or any supplemental
indenture to the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
49
58
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 10.13, 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 10.13.
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 10.7. The provisions of SECTIONS 8.1, 10.3 and 10.4 shall be applicable
to any authenticating agent.
ARTICLE 11
DISCHARGE OF INDENTURE
11.1 ACKNOWLEDGMENT OF DISCHARGE. Unless otherwise specified in a
supplemental indenture as contemplated by SECTION 2.1 with respect to any series
of Notes, the Company may terminate its obligations under this Indenture and any
supplemental indenture(s) with respect to any series of Notes (except as to any
surviving rights of registration of transfer or exchange of Notes expressly
provided for in this Indenture or any supplemental indenture and rights to
receive payments of interest thereon), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction, cancellation and discharge of such series of Notes, when
50
59
(a) either
(1) all Notes in such series theretofore authenticated
and delivered other than (a) Notes which have been destroyed, lost or
stolen and which have been 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 15.2 have been delivered to the Trustee for
cancellation; or
(2) all Notes in such series not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one (1) year, or
(iii) are to be called for redemption within one
(1) year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, 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
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal, and premium, if any, and interest to the
date of such deposit (in the case of Notes which have become due and
payable), or to the Stated Maturity or Redemption Date, as the case may
be;
(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 its
obligations under this Indenture and the applicable supplemental indenture with
respect to such series of Notes have been complied with.
Notwithstanding the satisfaction and discharge of the obligations under
this Indenture and the applicable supplemental indenture with respect to any
series of Notes, the obligations of the Company to the Trustee under
SECTION 10.7 shall survive.
11.2 MONEY HELD IN TRUST. All money deposited with the Trustee
pursuant to SECTION 11.1 shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture and any supplemental
indenture, to the payment, either directly or through any paying
51
60
agent (including the Company acting as its own paying agent), as the Trustee may
determine, to the persons entitled thereto, of the principal, and premium, if
any, 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 11.1 to the persons entitled to such money.
ARTICLE 12
MEETING OF NOTEHOLDERS
12.1 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 12 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 7;
(b) To remove the Trustee and appoint a successor trustee
pursuant to any of the provisions of ARTICLE 10;
(c) To consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
ARTICLE 13; 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.
12.2 CALL OF MEETINGS BY TRUSTEE; GENERALLY. Meetings of
Noteholders may be held at such place or places and at such time or times in any
place 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.
12.3 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 12.1, to be held at such time and at such place designated in
SECTION 12.2 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
52
61
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 13.2(C), whether or not Notes 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 10.2, 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 SECTION 12.1, 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 12.3.
12.4 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.
12.5 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
53
62
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 as
hereinafter provided.
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 12.3, 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 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 12.3 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.
12.6 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 12.3. 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.
54
63
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
12.7 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
any meeting of holders duly called and held in accordance with the provisions of
this ARTICLE 12, or (C) by a combination of such instrument or instruments and
any such record of such a meeting of holders.
12.8 EXERCISE OF RIGHT OF TRUSTEE OR NOTEHOLDERS MAY NOT BE HINDERED OR
DELAYED BY CALL OF MEETING OF NOTEHOLDERS. Nothing in this ARTICLE 12 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 13
SUPPLEMENTAL INDENTURES
13.1 PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE EXECUTED BY
COMPANY AND TRUSTEE. Without the consent of the holders of any Notes, the
Company 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 obligations of the Company
pursuant to ARTICLE 9 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
55
64
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;
(c) To cure any ambiguity or to correct or supplement any
provision contained in this Indenture which may be inconsistent with
any other provision 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; or
(d) to provide for the creation of any series of Notes.
Nothing contained in this ARTICLE 13 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 or
any supplemental 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.
13.2 MODIFICATION OF INDENTURE BY WRITTEN CONSENT OF NOTEHOLDERS.
(a) With the consent (evidenced as provided in ARTICLE 12) of the
holders of not less than sixty-six and two thirds percent (66 2/3%) in aggregate
principal amount of the Notes then outstanding, by Act of said holders delivered
to the Company (when authorized by a Certified Resolution) and the Trustee, the
Company 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, any applicable supplemental
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:
(1) change the Stated Maturity of the principal of, or
any installment of interest on, any Note, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon redemption thereof, or the coin or currency in which, any Note or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such
56
65
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or impair the right to
require redemption as set forth in SECTION 6.5;
(2) 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
(3) modify any of the provisions of this SECTION 13.2,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the holder of each Note of such series affected thereby.
(b) With respect to changes affecting one or more, but less than
all, series of Notes then outstanding, with the consent (evidenced as provided
in ARTICLE 12) of the holders of not less than sixty-six and two thirds percent
(66 2/3%) in aggregate principal amount of the Notes of such affected series
then outstanding, by Act of said holders delivered to the Company and the
Trustee, the Company 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, any applicable
supplemental indenture or the rights of such 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 of
such series affected thereby:
(1) change the Stated Maturity of the principal of, or
any installment of interest on, any Note of such series, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon redemption thereof, or the coin or currency in which, any
Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or impair the right to require redemption as set
forth in SECTION 6.5;
(2) reduce the percentage(s) of the aggregate principal
amount of outstanding Notes of such series, 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
(3) modify any of the provisions of this SECTION 13.2,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the holder of each Note of such series affected thereby.
57
66
(c) 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
10.2, 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 13.2 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 13.2 shall be executed by
the Company and the Trustee in accordance with the terms of SECTION 13.3.
Promptly after the execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of SECTION 13.3, 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.
13.3 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 13.1 or SECTION
13.2, and, if pursuant to SECTION 13.2, evidence filed with the Trustee 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 10.2 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.
13.4 SUPPLEMENTAL INDENTURES PART OF INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions of this ARTICLE 13,
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 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.
13.5 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 13 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
58
67
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.
13.6 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 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
14.1 IMMUNITY OF CERTAIN PERSONS. No recourse for the payment of
the principal of or premium, if any, or interest on any Note, 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
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.
ARTICLE 15
MISCELLANEOUS
15.1 BENEFITS RESTRICTED TO PARTIES AND TO HOLDERS OF NOTES. Except
as provided herein, nothing in this Indenture or any supplemental 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 supplemental indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions, stipulations,
promises and agreements contained in this Indenture and in any supplemental
indenture by and on behalf of the Company shall be for the sole and exclusive
benefit of the parties hereto and thereto, and of the holders of the Notes
outstanding hereunder and thereunder.
59
68
15.2 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
principal of, and premium, if any, or interest on any Note and remaining
unclaimed for six (6) years after the date upon which the principal of and
premium, if any, or interest on such Notes shall have become due and payable,
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.
15.3 FORMAL REQUIREMENTS OF CERTIFICATES AND OPINIONS HEREUNDER.
(a) Each certificate or opinion which is specifically
required by the provisions of this Indenture or any supplemental
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.
(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 and any supplemental 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 and any supplemental 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 or any
supplemental 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
60
69
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.
15.4 EVIDENCE OF ACT OF THE NOTEHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture or any supplemental 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 any supplemental indenture and (subject to
SECTION 10.2) 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
acknowledgments 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.
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.
15.5 PARTIES TO INCLUDE SUCCESSORS AND ASSIGNS. Subject to the
provisions of ARTICLES 9 AND 10 hereof, whenever in this Indenture or any
supplemental 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 and any
supplemental indenture contained by or on behalf of the Company or by or on
behalf of the Trustee shall bind and inure to the benefit of the respective
successors and assigns of such parties whether so expressed or not.
15.6 IN EVENT OF CONFLICT WITH TRUST INDENTURE ACT OF 1939,
PROVISIONS THEREIN TO CONTROL. If any provision of this Indenture or any
supplemental indenture limits, qualifies or conflicts with another provision of
this Indenture or any supplemental indenture required to be included herein by
61
70
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 and in any supplemental indenture which are not included herein or
therein are hereby incorporated herein and therein by reference to said Trust
Indenture Act.
15.7 REQUEST, NOTICES, ETC. TO TRUSTEE. Any request, demand,
authorization, direction, notice, consent, waiver or act of the Noteholders or
other document provided or permitted by this Indenture and in any supplemental
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, first class, postage prepaid, to or with a
Responsible Officer of 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 Xxxxxx, X.X. Xxx
000, Xxxxxxxxxxxx, XX 00000, or at any other address furnished in
writing to the Trustee by the Company.
15.8 MANNER OF NOTICE. Where this Indenture or any supplemental
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.
Where this Indenture or any supplemental 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 or any supplemental 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.
62
71
15.9 SEVERABILITY. In case any provision in this Indenture, any
supplemental indenture, or any of 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.
15.10 PAYMENTS DUE ON DAYS WHEN BANKS CLOSED. In any case where the
date of any Interest Payment Date or Redemption Date, or the Stated Maturity of
any Note, or any date on which any Defaulted Interest is proposed to be paid 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 any of
the Notes or this Indenture or any supplemental indenture) payment of the
principal of, and premium, if any, 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 Interest Payment Date or Redemption Date or Stated
Maturity or date for the payment of Defaulted Interest 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.
15.11 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.
15.12 TITLES OF ARTICLES OF THIS INDENTURE NOT PART THEREOF. The
titles of the several Articles of this Indenture and the table of contents shall
not be deemed to be any part hereof.
15.13 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.
15.14 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.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
63
72
IN WITNESS WHEREOF, LITCHFIELD FINANCIAL CORPORATION has caused its
name to be hereunto affixed, and this instrument to be signed by its Chairman of
the Board, President or any Vice President and its corporate seal to be affixed
hereto, and the same to be attested by its Secretary or Clerk; and THE BANK OF
NEW YORK, 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 by one
of its authorized signatories, as of the day and year first written above.
LITCHFIELD FINANCIAL CORPORATION
ATTEST: By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
/s/ Xxxxxxx X. Xxxx
-------------------------
Attesting Officer
[Seal]
THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice-President
64