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PRIME HOLDING, INC.
TO
AIBC SERVICES N.V.
TRUSTEE
_________________
INDENTURE
DATED AS OF NOVEMBER 29, 1994
_________________
$10,000,000
14% SENIOR SUBORDINATED NOTES DUE MARCH 31, 2006
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TABLE OF CONTENTS
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . 1
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Compliance Certificate and Opinions. . . . . . . . 9
SECTION 1.03. Form of Documents Delivered to Trustee.. . . . . . 9
SECTION 1.04. Acts of Holders. . . . . . . . . . . . . . . . . . 10
SECTION 1.05. Notices, Etc., to Trustee and Company. . . . . . . 10
SECTION 1.06. Notice to Holders; Waiver. . . . . . . . . . . . . 11
SECTION 1.07. Effect of Headings and Table of Contents.. . . . . 11
SECTION 1.08. Successors and Assigns.. . . . . . . . . . . . . . 11
SECTION 1.09. Separability Clause. . . . . . . . . . . . . . . . 12
SECTION 1.10. Benefits of Indenture. . . . . . . . . . . . . . . 12
SECTION 1.11. GOVERNING LAW; JURISDICTION. . . . . . . . . . . . 12
SECTION 1.12. Execution in Counterparts. . . . . . . . . . . . . 12
SECTION 1.13. Legal Holidays.. . . . . . . . . . . . . . . . . . 12
ARTICLE TWO THE NOTES. . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.01. Forms Generally. . . . . . . . . . . . . . . . . . 13
SECTION 2.02. Title and Terms. . . . . . . . . . . . . . . . . . 13
SECTION 2.03. Date and Denomination of Notes; Interest; Place of
Payment.. . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.04. Execution, Authentication and Delivery.. . . . . . 14
SECTION 2.05. Temporary Notes. . . . . . . . . . . . . . . . . . 15
SECTION 2.06. Registration, Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . . . . . 15
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PRIME HOLDING INDENTURE
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Notes.. . . . 16
SECTION 2.08. Payment of Interest; Interest Rights Preserved.. . 17
SECTION 2.09. Persons Deemed Owners. . . . . . . . . . . . . . . 18
SECTION 2.10. Cancellation.. . . . . . . . . . . . . . . . . . . 18
ARTICLE THREE SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . 18
SECTION 3.01. Satisfaction and Discharge of Indenture. . . . . . 18
SECTION 3.02. Application of Trust Funds.. . . . . . . . . . . . 20
ARTICLE FOUR REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.01. Events of Default. . . . . . . . . . . . . . . . . 20
SECTION 4.02. Acceleration of Maturity; Rescission and
Annulment.. . . . . . . . . . . . . . . . . . . . 22
SECTION 4.03. Collection of Indebtedness and Suits for Enforcement
by the Trustee . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.04. Trustee May File Proofs of Claim.. . . . . . . . . 23
SECTION 4.05. Trustee May Enforce Claims Without Possession of
Notes.. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.06. Application of Funds Collected.. . . . . . . . . . 24
SECTION 4.07. Limitation on Suits. . . . . . . . . . . . . . . . 25
SECTION 4.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.09. Restoration of Rights and Remedies.. . . . . . . . 26
SECTION 4.10. Rights and Remedies Cumulative.. . . . . . . . . . 26
SECTION 4.11. Delay or Omission Not Waiver.. . . . . . . . . . . 26
SECTION 4.12. Control by Holders.. . . . . . . . . . . . . . . . 26
SECTION 4.13. Waiver of Past Defaults. . . . . . . . . . . . . . 26
SECTION 4.14. Undertaking for Costs. . . . . . . . . . . . . . . 27
SECTION 4.15. Waiver of Stay or Extension Laws.. . . . . . . . . 27
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PRIME HOLDINGS INDENTURE
ARTICLE FIVE THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.01. Certain Duties and Responsibilities. . . . . . . . 28
SECTION 5.02. Notice of Defaults.. . . . . . . . . . . . . . . . 29
SECTION 5.03. Certain Rights of Trustee. . . . . . . . . . . . . 29
SECTION 5.04. Not Responsible for Recitals or Issuance of Notes. 30
SECTION 5.05. May Hold Notes; Paying Agent; Other Individual
Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.06. Funds Held in Trust. . . . . . . . . . . . . . . . 30
SECTION 5.07. Compensation and Reimbursement.. . . . . . . . . . 30
SECTION 5.08. Corporate Trustee Required; Eligibility. . . . . . 31
SECTION 5.09. Resignation and Removal; Appointment of a
Successor. . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.10. Acceptance of Appointment by Successor Trustee.. . 32
SECTION 5.11. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.12. Appointment of Authenticating Agent. . . . . . . . 33
ARTICLE SIX HOLDERS' LISTS AND REPORTS BY THE COMPANY. . . . . . . . . 34
SECTION 6.01. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.02. Preservation of Information. . . . . . . . . . . . 35
SECTION 6.03. Reports by the Company.. . . . . . . . . . . . . . 35
ARTICLE SEVEN CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . 35
SECTION 7.01. Company May Not Consolidate, Etc., on
Certain Terms. . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.02. Successor Corporation Substituted. . . . . . . . . 36
ARTICLE EIGHT SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . 36
SECTION 8.01. Supplemental Indentures Without Consent of Holders. 36
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PRIME HOLDINGS INDENTURE
SECTION 8.02. Supplemental Indentures With Consent of Holders. . 37
SECTION 8.03. Execution of Supplemental Indentures.. . . . . . . 38
SECTION 8.04. Effect of Supplemental Indentures. . . . . . . . . 38
SECTION 8.05. Reference in Notes to Supplemental Indentures. . . 38
ARTICLE NINE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.01. Payment of Principal, Premium, if any, and
Interest . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.02. Maintenance of Office or Agency. . . . . . . . . . 38
SECTION 9.03. Funds for Note Payments to Be Held in Trust. . . . 39
SECTION 9.04. Corporate Existence. . . . . . . . . . . . . . . . 40
SECTION 9.05. Maintenance of Properties. . . . . . . . . . . . . 40
SECTION 9.06. Payment of Taxes and Other Claims. . . . . . . . . 41
SECTION 9.07. Provision of Reports.. . . . . . . . . . . . . . . 41
SECTION 9.08. Waiver of Usury Defense. . . . . . . . . . . . . . 41
SECTION 9.09. Waiver of Certain Covenants. . . . . . . . . . . . 41
SECTION 9.10. Statement by Officers as to Default. . . . . . . . 42
SECTION 9.11. Limitation on Indebtedness.. . . . . . . . . . . . 42
SECTION 9.12. Limitation on the Payment of Dividends and
Purchase of Stock. . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.13. Change of Control. . . . . . . . . . . . . . . . . 43
ARTICLE TEN REDEMPTION OF NOTES. . . . . . . . . . . . . . . . . . . . 45
SECTION 10.01. Applicability of Article. . . . . . . . . . . . . 45
SECTION 10.02. Optional Redemption.. . . . . . . . . . . . . . . 45
SECTION 10.03. Election to Redeem. . . . . . . . . . . . . . . . 45
SECTION 10.04. Selection by Company of Notes to be Redeemed. . . 45
SECTION 10.05. Notice of Redemption. . . . . . . . . . . . . . . 46
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PRIME HOLDINGS INDENTURE
SECTION 10.06. Deposit of Redemption Price.. . . . . . . . . . . 46
SECTION 10.07. Notes Payable on Redemption Date. . . . . . . . . 47
SECTION 10.08. Notes Redeemed in Part. . . . . . . . . . . . . . 47
ARTICLE ELEVEN SUBORDINATION . . . . . . . . . . . . . . . . . . . . . 47
SECTION 11.01. Agreement of Subordination. . . . . . . . . . . . 47
SECTION 11.02. Payments to Holders of Notes. . . . . . . . . . . 48
SECTION 11.03. Subrogation of Notes. . . . . . . . . . . . . . . 50
SECTION 11.04. Authorization by Holders of Notes.. . . . . . . . 51
SECTION 11.05. Notice to Trustee.. . . . . . . . . . . . . . . . 51
SECTION 11.06. Trustee's Relation to Senior Indebtedness.. . . . 52
SECTION 11.07. No Impairment of Subordination. . . . . . . . . . 52
SECTION 11.08. Article Eleven Not to Prevent Events of
Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11.09. Continuing Effect.. . . . . . . . . . . . . . . . 52
SECTION 11.10. Individual Rights of Senior Lenders.. . . . . . . 53
SECTION 11.11. Article Applicable to Paying Agents and
Depositaries.. . . . . . . . . . . . . . . . . . 53
v
PRIME HOLDINGS INDENTURE
This INDENTURE is dated as of November 29, 1994 from PRIME HOLDING,
INC., a Delaware corporation (the "Company"), to AIBC SERVICES N.V., a
Netherlands Antilles corporation (the "Trustee").
RECITALS OF THE COMPANY
For its lawful corporate purposes, the Company has duly authorized
the issue of its 14% Senior Subordinated Notes due March 31, 2006 (the "Notes")
of substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All acts and things necessary to make the Notes, when executed by the
Company and authenticated and delivered by the Trustee, as provided in this
Indenture, the valid, binding and legal obligations of the Company, and to
constitute this Indenture a valid agreement according to its terms, have been
done and performed, and the execution of this Indenture and the issue hereunder
of the Notes in all respects have been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the premises and the purchase and acceptance of
the Notes by the Holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the Holders from time to time
of the Notes as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. The words "herein,"
"hereof" and "hereunder" and words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article One include the plural as well as the singular.
ACT, when used with respect to any Holder, has the meaning specified
in Section 1.04.
AFFILIATE of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified
Person. For the purposes of this definition, "control", when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract, proxy or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AUTHENTICATING AGENT means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
BANK AGENT means (a) Chemical Bank as long as Chemical Bank is the
Administrative Agent under the Senior Credit Facility and (b) thereafter, any
other administrative agent under the Senior Credit Facility.
BANKRUPTCY LAW means Title 11 of the U.S. Code or any similar
Federal or state law for the relief of debtors.
BUSINESS DAY means any day on which banking institutions in both
Curacao, Netherlands Antilles, and New York, New York, are open for business.
BRIDGE LOAN AGREEMENT means the Bridge Loan Agreement dated as of
December , 1994 among Operating Company, Chemical Bank, as administrative
agent, and the lenders from time to time party thereto, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
BRIDGE SUBORDINATED DEBT means the subordinated bridge loans or
exchange notes of Operating Company outstanding from time to time pursuant to
the Bridge Loan Agreement.
CHANGE OF CONTROL means, (a) at any time prior to an initial Public
Offering by the Company, Investcorp together with Investcorp's Affiliates ceases
to own, directly or indirectly, in the aggregate, at least 51% of the issued and
outstanding voting capital stock of the Company (any such indirect ownership of
the voting capital stock of the Company to be measured by multiplying
(i) Investcorp's (and Investcorp's Affiliates') aggregate percentage interest in
the voting power of the voting stock of any other Person which holds voting
stock of the Company by (ii) the percentage interest of the voting stock of the
Company held, directly or indirectly, by such other Person), and (b) at any time
after an initial Public Offering by the Company, if any Person (other than
Investcorp, any of Investcorp's Affiliates, any Person that is a member of
senior management of the Company or any entity the majority of the equity
ownership interests of which is owned by Investcorp, any of Investcorp's
Affiliates and members of senior management of the Company or any Person acting
in the capacity of an underwriter), whether singly or in concert with one or
more Persons, directly or indirectly, acquires 35% or more, on a fully diluted
basis, of the outstanding voting stock of the Company (excluding, for purposes
of such determination, the percentage, on a fully diluted basis, of the common
stock of the Company outstanding on the date hereof and owned, directly or
indirectly, by such Person or Persons).
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PRIME HOLDINGS INDENTURE
CHANGE OF CONTROL DATE has the meaning specified in Section 9.13.
CHANGE OF CONTROL OFFER has the meaning specified in Section 9.13.
CHANGE OF CONTROL PAYMENT DATE has the meaning specified in
Section 9.13.
COMMISSION means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing, the body performing its duties at such time.
COMPANY means Prime Holding, Inc. and any corporation that succeeds
to Prime Holding, Inc. or any successor corporation pursuant to the provisions
of Article Seven, and thereafter "Company" shall mean such successor
corporation.
COMPANY ORDER or COMPANY REQUEST means a written order or request
signed in the name of the Company by its Chairman of the Board, a Vice Chairman,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
CONSOLIDATED EBITDA means, for any period, the consolidated net
income of the Company and its Subsidiaries for such period, plus, without
duplication and to the extent reflected as a charge in the statement of such
consolidated net income for such period, the sum of (a) taxes measured by
income, (b) interest expense, amortization or write-off of debt discount, debt
issuance, warrant and other equity issuance costs and commissions, discounts,
redemption premium and other fees and charges associated with Indebtedness under
the Senior Credit Facility, the Notes, the Bridge Subordinated Debt or any other
Indebtness of the Company or its Subsidiaries permitted hereunder (including the
acquisition or repayment thereof), (c) cost of surety bonds, (d) depreciation
and amortization expense, (e) amortization of inventory write-up under APB 16,
amortization of intangibles (including, but not limited to, goodwill and costs
of interest-rate caps) and organization costs, (f) non-cash amortization of
financing leases, and (g) any other write-downs, write-offs, minority interests
and other non-cash charges in determining such consolidated net income for such
period.
CUSTODIAN means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
DEFAULTED INTEREST has the meaning specified in Section 2.08.
EVENT OF DEFAULT has the meaning specified in Section 4.01.
FISCAL YEAR of the Company means the fiscal year of the Company in
effect at the time of any determination thereof.
GAAP means generally accepted accounting principles in effect in the
United States of America on the date of this Indenture.
3
PRIME HOLDINGS INDENTURE
HOLDER means a Person in whose name at the time of any determination
thereof a particular Note is registered on the Note Register.
INDEBTEDNESS means the principal of and premium, if any, and interest
on, any of the following, whether outstanding at the date hereof or hereafter
incurred, created, assumed or guarantied:
(a) all indebtedness of the Company for borrowed money (including
any indebtedness secured by a Lien that is (i) given to secure all or part of
the purchase price of property subject thereto, whether given to the vendor of
such property or to another, or (ii) existing on property at the time of
acquisition thereof);
(b) all indebtedness and liabilities of the Company evidenced by
notes, Notes, bonds or other securities sold by the Company for value;
(c) all liabilities under letters of credit issued for the account
of the Company, including without limitation reimbursement obligations;
(d) all obligations of the Company under capital leases (the
capitalized amount of which is being deemed "principal" for purposes of this
definition);
(e) all indebtedness and liabilities of others of the kinds
described in any of the preceding clauses (a), (b) and (c) and all lease
obligations of others of the kind described in the preceding clause (d) or the
following clause (f) assumed by or guarantied in any manner by the Company or in
effect guarantied by the Company through an agreement to purchase, contingent or
otherwise;
(f) all Interest Swap Obligations in respect of Indebtedness
referred to in clause (a); and
(g) all renewals, extensions and refundings of indebtedness and
liabilities of the kinds described in any of the preceding clauses (a), (b),
(c), (e) and (f) and all renewals, extensions and refundings of lease
obligations of the kinds described in either of the preceding clauses (d) and
(e),
PROVIDED, HOWEVER, that "Indebtedness" shall not in any event include (i) trade
and other accounts payable and accrued expenses payable in the ordinary course
of business which are not overdue for a period of more than 90 days or, if
overdue for more than 90 days, as to which a dispute exists and adequate
reserves in conformity with GAAP have been established on the books of such
Person, and (ii) letters of credit supporting the purchase of goods in the
ordinary course of business and expiring no more than six months from the date
of issuance.
INDENTURE means this instrument as originally executed or, if amended
or supplemented as herein provided, as so amended or supplemented.
4
PRIME HOLDINGS INDENTURE
INTEREST COVERAGE RATIO means, on the last day of any fiscal quarter
of the Company, the ratio of (a) Consolidated EBITDA for the period of four
fiscal quarters ending on such day (or, if shorter, the period commencing on the
first day of the first fiscal quarter commencing on or after the date of this
Indenture and ending on such day) to (b) cash interest expense (including fees
payable on account of letters of credit and in respect of surety bonds, but
excluding, to the extent included in interest expense in accordance with GAAP,
amortization of interest rate caps and debt discount (including discount of
liabilities and reserves established under APB 16), costs of debt issuance and
interest expense on customer deposits) for such period net of interest income,
in each case on a consolidated basis for the Company and its Subsidiaries.
INTEREST PAYMENT DATE means each date on which payment of interest is
due in respect of the Notes in accordance with the terms thereof, and shall be
November 15 and May 15 in each year, commencing May 15, 1995.
INTEREST SWAP OBLIGATIONS means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount.
INVESTCORP means INVESTCORP S.A., a company organized under the laws
of Luxembourg and as of the date hereof having an address at 00 xxx Xxxxx Xxxx,
Xxxxxxxxxx.
INVESTCORP'S AFFILIATES means (a) any Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
Investcorp or (b) any Person who is a director or officer (i) of Investcorp,
(ii) of any wholly-owned Subsidiary of Investcorp or (iii) of any Person
described in clause (a) above. For purposes of this definition, "control" of a
Person shall mean the power, directly or indirectly, (A) to vote a majority in
interest (more than 50%) of the securities having ordinary voting power for the
election of directors of such Person, whether by ownership of securities,
contract, proxy or otherwise, or (B) to direct or cause the direction of the
management and policies of such Person, whether by ownership of securities,
contract, proxy or otherwise.
LIEN means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
5
PRIME HOLDINGS INDENTURE
MATURITY, 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 the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
MERGER means the merger of Operating Company with and into Primeco.
NOTES has the meaning specified in the Recitals hereto.
NOTE REGISTER and NOTE REGISTRAR have the respective meanings
specified in Section 2.06.
OFFICERS' CERTIFICATE means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Chief Financial Officer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
OPERATING COMPANY means Prime Acquisition Corp., a Delaware
Corporation, and, after the merger of Prime Acquisition Inc. with and into
Primeco Inc., the surviving corporation.
OPINION OF COUNSEL means an opinion in writing signed by legal
counsel acceptable to the Trustee.
OUTSTANDING, when used with reference to Notes, means, as of the date
of determination, all Notes 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 funds in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent), provided that if such Notes are to be redeemed, notice of
such redemption shall have been given pursuant to this Indenture or provision
satisfactory to the Trustee shall have been made for giving such notice; and
(c) Notes in exchange for or in lieu of which other Notes shall
have been authenticated and delivered pursuant to the terms of Section 2.07
unless proof satisfactory to the Trustee is presented that any such Notes are
held by bona fide holders in due course;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company, any other obligor on the Notes or any Subsidiary of the Company
shall be deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
6
PRIME HOLDINGS INDENTURE
authorization, direction, notice, consent or waiver, only Notes that the Trustee
knows to be so owned shall be so disregarded. Notes so owned that 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 on the
Notes or a Subsidiary of the Company.
PERSON means a corporation, an association, a partnership, a joint
venture, an organization, a trust, an individual or a government or any agency
or political subdivision thereof.
PRIMECO means Primeco Inc., a Texas corporation.
PRINCIPAL OFFICE OF THE TRUSTEE means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered.
PUBLIC OFFERING means the sale by the Company of at least 25% of its
then outstanding voting stock (after giving effect thereto) pursuant to an
effective registration statement (other than a registration statement on Form X-
0, X-0 or any successor or similar forms) filed under the Securities Act of
1933, as amended, and in compliance with all applicable state securities laws.
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.
REGULAR RECORD DATE, for the interest payable on any Interest Payment
Date, means the November 1 or May 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
RESPONSIBLE OFFICER means any officer of the Trustee.
SENIOR CREDIT FACILITY means the credit facilities under the Credit
Agreement dated as of December , 1994, among Operating Company, Chemical
Bank, as Administrative Agent, The CIT Group/Business Credit, Inc., as
Collateral Agent, Chemical Bank and Bankers Trust Company as Managing Agents,
and the financial institutions which are parties thereto from time to time,
including all obligations of Operating Company and its Subsidiaries to be
incurred thereunder, and, any related notes, collateral documents, letter of
credit applications and guaranties, and any increases, renewals, extensions,
refundings, deferrals, restructurings, amendments, modifications, replacements
or refinancings of any of the foregoing (whether provided by the original
Administrative Agent, Collateral Agent and lenders under such Credit Agreement
or another Administrative Agent, Collateral Agent or other lenders and whether
or not provided under the original Credit Agreement).
SENIOR INDEBTEDNESS means, whether now existing or hereafter
incurred, (a) guaranties by the Company of Indebtedness and other monetary
obligations of Operating Company under the Senior Credit Facility pursuant to
the Holdings Guarantee (as defined in
7
PRIME HOLDINGS INDENTURE
the Credit Agreement pursuant to which the Senior Credit Facility is provided),
(b) renewals, extensions, refundings, deferrals, restructurings, amendments and
modifications of any such indebtedness, obligation or guaranty up to an
aggregate principal amount of $350,000,000, (c) obligations of the Company
pursuant to any pledge agreements with respect to the capital stock of Operating
Company owned by the Company to support the guaranties described in clause (a)
above, and (d) any Interest Swap Obligations related to payment obligations on
Indebtedness in respect of the Senior Credit Facility incurred by the Company or
any Significant Subsidiary or guaranteed by the Company; UNLESS, in the case of
(a), (b), (c) or (d), by the terms of the instrument creating, governing or
evidencing such indebtedness, obligation or guaranty, it is provided that such
indebtedness, obligation or guaranty is not senior or superior in right of
payment to the Notes; and PROVIDED that Senior Indebtedness shall not include
any indebtedness, obligation or guaranty of the Company (i) to or in favor of
any Subsidiary of the Company, (ii) to trade creditors for materials and
supplies purchased in the ordinary course of business or (iii) to any Person
arising out of any lawsuit against the Company or any of its Subsidiaries,
including any settlement thereof. If any Senior Indebtedness under the Senior
Credit Facility is disallowed, avoided or subordinated pursuant to the
provisions of Section 548 of the Bankruptcy Law or any applicable state
fraudulent conveyance law, it shall nevertheless constitute Senior Indebtedness.
SENIOR LENDER means the Person or Persons to whom the Company is
obligated under any Senior Indebtedness on any date.
SIGNIFICANT SUBSIDIARY means, on any date, any Subsidiary of the
Company (a) the book value of the assets of which amounts to 10% or more of the
book value of the consolidated total assets of the Company and its consolidated
Subsidiaries taken as a whole, or (b) the revenues of which for the most recent
fiscal quarter amount to 10% or more of the consolidated revenues of the Company
and its consolidated Subsidiaries for such quarter, in each case as determined
in accordance with GAAP on the basis of the Company's most recently available
consolidated financial statements.
SPECIAL RECORD DATE, for the payment of any Defaulted Interest, means
a date fixed by the Trustee pursuant to Section 2.08.
STATED MATURITY means the date specified in the Notes as the fixed
date on which the principal of the Notes is due and payable in full.
SUBSIDIARY, with respect to any Person, means a corporation more than
50% of the outstanding voting stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person, or by such
Person and one or more other Subsidiaries of such Person. For the purposes of
this definition, "voting stock" means stock that ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
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PRIME HOLDINGS INDENTURE
TRUSTEE means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the provisions of Article Five, and thereafter "Trustee" shall mean
such successor Trustee.
SECTION 1.02. COMPLIANCE CERTIFICATE AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee (a) an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and (b) an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents specifically is required by any provision
of this Indenture relating to such particular application or request no
additional certificate or opinion shall be requested by the Trustee.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by or
covered by an opinion of any specified Person, it is not necessary that all such
matters be certified by or covered by the opinion of only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of or
representations by an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous and provided that the Person issuing the certificate or
opinion or representation is authorized to issue the certificate or opinion or
representation on behalf of the Person in respect of which such certificate or
opinion or representation is issued.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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PRIME HOLDINGS INDENTURE
SECTION 1.04. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and except as herein otherwise expressly provided such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is expressly required by this Indenture, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) herein sometimes are referred to as the "Act" of the Holders
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 conclusive in favor of the Trustee and the Company
if made in the manner provided in this Section 1.04.
(b) 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 a certificate of a 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 a signer acting in a capacity other than his individual
capacity, such certificate also shall 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, also may be proved
in any other reasonable manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or Act of the Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver, Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or the Company shall be sufficient
for every purpose hereunder if in writing and sent to the Trustee in care of
AMACO N.V. by personal delivery, overnight courier or first-class mail, postage
prepaid, return receipt requested, at X.X. Xxx 0000, Xxxx Xxxxx Xxxxxxx #00,
Xxxxxxx, Xxxxxxxxxxx Antilles, or by telecopier at 599-9-615-392, or such other
address or telecopier number as is set forth in a notice theretofore given by
the Trustee to the Holders and the Company, or
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PRIME HOLDINGS INDENTURE
(b) the Company by the Trustee or any Holder shall be sufficient
for every purpose hereunder if in writing and sent to the Company by personal
delivery, overnight courier or first-class mail, postage prepaid, return receipt
requested, care of Xxxxxx, Xxxx & Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, or by telecopier at (000) 000-0000, in each case addressed to Xxxxxx
X. Xxxxxx with a copy to INVESTCORP International Inc. at 000 Xxxx Xxxxxx, 00xx
Xxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or by telecopier (000) 000-0000, in each
case addressed to the attention of Xxxxxx X. Xxxxxx or his designee, or at such
other address or telecopier number, or to such other Person's attention, as is
set forth in a notice theretofore given by the Company to the Trustee and the
Holders.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event or report to
Holders, such notice or report shall be deemed to have been given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, return receipt requested, to each Holder affected thereby, at
his address as it appears in the Note Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such notice
or report. In any case where notice to Holders is to be given, neither the
failure to send such notice, nor any defect in any notice, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
If by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The table of contents and the titles and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only and are not to be considered a part hereof and in no way shall modify or
restrict any of the terms or provisions hereof.
SECTION 1.08. SUCCESSORS AND ASSIGNS.
All the covenants and agreements of the Company in this Indenture
shall bind its successors and assigns whether so expressed or not.
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PRIME HOLDINGS INDENTURE
SECTION 1.09. SEPARABILITY CLAUSE.
If any provision of this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not be affected or impaired thereby.
SECTION 1.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall
give any Person any benefit or any legal or equitable right, remedy or claim
under this Indenture, other than the parties hereto (and except for holders of
Senior Indebtedness, who shall be third party beneficiaries of this Indenture),
any paying agent, any Note Registrar and their successors hereunder and the
Holders of Notes.
SECTION 1.11. GOVERNING LAW; JURISDICTION.
THIS INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE CONTRACTS MADE
UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SUCH STATE. Any claim arising under this
Indenture shall be brought only in a state or Federal court in the City of New
York, State of New York, and the Company, the Trustee and any Holders of Notes
issued pursuant to this Indenture hereby consent to the exercise of the
jurisdiction by any such court.
SECTION 1.12. EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts together shall constitute
but one and the same instrument.
SECTION 1.13. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Change of Control Payment Date or the Stated Maturity of any Note shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or the
Notes) payment of principal of or premium, if any, or interest on any Note due
on such date need not be made or effected on such date but may be made or
effected on the next succeeding Business Day with the same force and effect as
if made on the Interest Payment Date, Redemption Date or Change of Control
Payment Date or at the Stated Maturity, provided that no interest shall accrue
with respect to the payment of principal, premium, if any, or interest that is
due on such Interest Payment Date, Redemption Date, Change of Control Payment
Date or Stated Maturity, as the case may be, from such date until such next
succeeding Business Day.
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PRIME HOLDINGS INDENTURE
ARTICLE TWO
THE NOTES
SECTION 2.01. FORMS GENERALLY.
The Notes and the Trustee's certificate of authentication to be
borne by the Notes shall be in substantially the form set forth on Exhibit A,
which is hereby incorporated in and made a part of this Indenture, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
The definitive Notes may be typed, printed, lithographed or engraved
or produced by any combination of these methods, but if listed on any securities
exchange shall be produced in a manner permitted by the rules of any such
securities exchange, all as may be determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
SECTION 2.02. TITLE AND TERMS.
The Notes shall be designated as "14% Senior Subordinated Notes due
March 31, 2006." Notes in the principal amount specified in the Company Order
referred to in the third paragraph of Section 2.04 may be executed by the
Company and delivered to the Trustee for authentication upon the execution of
this Indenture, or from time to time thereafter, and the Trustee thereupon shall
authenticate and deliver such Notes as provided in such Company Order; provided
that the aggregate principal amount of all Notes at any time Outstanding (except
for Notes issued in lieu of or in substitution for destroyed, lost or stolen
Notes as provided in Section 2.07) shall not exceed $10,000,000.
SECTION 2.03. DATE AND DENOMINATION OF NOTES; INTEREST; PLACE OF
PAYMENT.
The Stated Maturity of the Notes shall be March 31, 2006, and they
shall bear interest at the rate of 14% per annum from the date upon which such
Notes are originally issued under this Indenture or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, as
the case may be, until Maturity. Interest on the Notes shall be computed on the
basis of the actual number of days elapsed in a 360-day year. Interest shall be
payable in arrears on each November 15 and May 15, commencing May 15, 1995 and
at Maturity. Interest shall be payable on any overdue principal and on any
overdue interest, to the extent that the payment of such interest shall be
legally enforceable, at the rate of 16% per annum.
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PRIME HOLDINGS INDENTURE
The principal of and premium, if any, and interest on the Notes
shall be payable at the office or agency of the Company maintained for such
purpose in Curacao, Netherlands Antilles, in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts; provided, however, that at the option of the Company
payment may be made by check mailed to the Person entitled thereto at his
address appearing on the Note Register. Notwithstanding the foregoing, the
principal of and premium, if any, and interest on any Note (other than the final
payment of principal on a Note) at the option of the Holder thereof shall be
paid directly to such Holder, by wire transfer of immediately available funds,
without presentment, to the address designated by such Holder in writing.
Before selling or otherwise transferring any Note, the Holder thereof shall make
a notation thereon of the aggregate amount of all payments of principal
theretofore made, and of the date to which interest has been paid.
The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Every Note shall
be dated the date of its authentication, shall bear interest from the applicable
date and shall be payable on the dates specified on the face of the form of
Note.
The rate of interest payable on any Note shall in no event exceed
the maximum rate permissible under applicable law. If interest would otherwise
be payable to the Holder of a Note in excess of the maximum lawful amount, the
interest payable shall be reduced to the maximum amount permitted under
applicable law; and if the Holder shall ever receive anything of value deemed
interest under applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
principal of the Note and not to payment of interest, or if such excessive
interest exceeds the unpaid balance of principal on the Note, such excess shall
be refunded to the Company.
SECTION 2.04. EXECUTION, AUTHENTICATION AND DELIVERY.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman, its President or a Vice President, under its
corporate seal reproduced thereon attested to by its Secretary or an Assistant
Secretary. The signature of any of these officers on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
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PRIME HOLDINGS INDENTURE
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for on
Exhibit A, manually executed by the Trustee, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 2.05. 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 or otherwise produced) in
any authorized denomination and substantially in the form of the definitive
Notes in lieu of which they are issued, but with such appropriate omissions,
insertions and variations as the officers executing such Notes may determine, as
evidenced by their execution of such Notes. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes. Without unreasonable delay the Company will execute and
deliver to the Trustee definitive Notes and thereupon the temporary Notes may be
surrendered in exchange for definitive Notes at the Principal Office of the
Trustee without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Notes, the Company shall execute and the Trustee shall
authenticate and deliver in exchange for the temporary Notes an equal aggregate
principal amount of definitive Notes. Until so exchanged, the temporary Notes
in all respects shall be entitled to the same benefits under this Indenture as
definitive Notes.
SECTION 2.06. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
All of the Notes issued under this Indenture shall be registered as
to both principal and interest as specified in the Notes. The Company shall
cause to be kept at the Principal Office of the Trustee a register (the "Note
Register") in which, subject to such reasonable regulations as the Trustee may
prescribe, Notes shall be registered and the transfer of Notes shall be
registered as provided in this Article Two. The Note Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. The Trustee hereby is appointed "Note Registrar" for
the purpose of registering Notes and transfers of Notes as herein provided.
Upon due presentment for registration of transfer of any Note at any
such office or agency maintained by the Company for such purpose, the Company
shall execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Note or Notes for an equal aggregate principal
amount.
At the option of the Holder, Notes may be exchanged for a like
aggregate principal amount of Notes of other authorized denominations. Notes to
be exchanged shall be surrendered at the Principal Office of the Trustee and the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Note or Notes which the Holder making the exchange shall be
entitled to receive.
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PRIME HOLDINGS INDENTURE
Every Note presented for registration of transfer or for exchange
(if so required by the Company or the Trustee) shall be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the Holder or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith, other than an exchange pursuant to Section 2.05, 8.05, 9.13 or 10.08.
The Company shall not be required to (a) issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of (i) a notice of redemption of
Notes selected for redemption or (ii) a Change of Control Offer pursuant to
Section 9.13, and ending at the close of business on the day of such mailing or
(b) register the transfer of or exchange any Note selected for redemption or to
be repurchased pursuant to Section 9.13, in whole or in part, except the
unredeemed or unrepurchased portion of any Note being redeemed or repurchased in
part.
All Notes issued upon any registration of transfer or exchange of
Notes shall be 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.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
If any Note shall become mutilated or be destroyed, lost or stolen,
the Company in its discretion may execute, and upon its request the Trustee
shall authenticate and deliver, a new Note, bearing a number not
contemporaneously Outstanding, in exchange and substitution for the mutilated
Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen. In every case the applicant for a substitute Note shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.
Upon the issuance of any substitute Note, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expense connected
therewith. If any Note that has matured or is about to mature or has been
called for redemption shall become mutilated or be destroyed, lost or stolen,
the Company, instead of issuing a substitute Note, may pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Note) if the applicant for such payment shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless and, in case of destruction, loss or theft, evidence satisfactory
to them of the destruction, loss or theft of such Note and of the ownership
thereof.
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PRIME HOLDINGS INDENTURE
Every substitute Note issued pursuant to the provisions of this
Section 2.07 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
all other Notes duly issued hereunder.
To the extent permitted by law, all Notes shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Note is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Note that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date ("Defaulted Interest")
forthwith will cease to be payable to the Holder on the relevant Regular Record
Date by virtue of his 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 (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes are registered on the Note Register at
the close of business on a 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 of the proposed payment date. At the same time the
Company shall deposit with the Trustee funds in an amount equal to the aggregate
amount of Defaulted Interest proposed to be paid, or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such funds when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as provided in this clause (a).
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than ten
days prior to the date of the proposed payment and not less than ten days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
promptly shall 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 Holder at his address as it appears on the
Note Register, not less than ten days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in
17
PRIME HOLDINGS INDENTURE
whose names the Notes are registered at the close of business 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 not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause (b), such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.08, each Note
delivered under this Indenture upon registration of transfer or in exchange for
or in lieu of any other Note shall carry the rights of interest accrued and
unpaid, and to accrue, that were carried by such other Note.
SECTION 2.09. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of and premium, if any, and (subject
to Section 2.08) interest on such Note and for all other purposes whatsoever,
whether or not the interest, premium, if any, or principal of such Note shall be
or have become due, and none of the Company, the Trustee or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.10. CANCELLATION.
All Notes surrendered for payment, redemption, exchange or
registration of transfer, if surrendered to any Person other than the Trustee,
shall be surrendered to the Trustee and promptly canceled by it. The Company at
any time may deliver to the Trustee for cancellation any Note previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and all Notes so delivered promptly shall be canceled by the
Trustee. No Note shall be issued in lieu of or in exchange for any Note
canceled as provided in this Section 2.10, except as expressly permitted by this
Indenture. All canceled Notes held by the Trustee shall be disposed of as
directed by a Company Order. If the Company shall acquire any of the Notes,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
ARTICLE THREE
SATISFACTION AND DISCHARGE
SECTION 3.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture upon Company Request shall cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Notes herein
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PRIME HOLDINGS INDENTURE
expressly provided for), and the Trustee, at the expense of the Company, shall
execute such instruments as the Company reasonably may request acknowledging
satisfaction and discharge of this Indenture, when:
(a) either
(i) all Notes theretofore authenticated and delivered
(other than (A) Notes that have been exchanged, mutilated, destroyed, lost or
stolen and that have been replaced or paid as provided in Section 2.07 and (B)
Notes for whose payment funds theretofore have been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 9.03) have been delivered
to the Trustee for cancellation; or
(ii) all such Notes not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one
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 (A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee as trust funds an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and interest to the
date of such deposit (in the case of Notes that 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 amounts payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 5.07, the obligations of
the Trustee to any Authenticating Agent under Section 5.12 and, if funds shall
have been deposited with the Trustee pursuant to Section 3.01(a), the
obligations of the Trustee under Section 3.02 and the last paragraph of
Section 9.03 shall survive.
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PRIME HOLDINGS INDENTURE
SECTION 3.02. APPLICATION OF TRUST FUNDS.
Subject to the provisions of Section 9.03, all funds deposited with
the Trustee pursuant to Section 3.01 shall be held in trust and applied by it,
in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any paying agent (including the Company if
acting as its own paying agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any, and interest for whose
payment such funds have been deposited with the Trustee.
ARTICLE FOUR
REMEDIES
SECTION 4.01. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one or more of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Note when such
interest becomes due and payable, and continuance of such default for a period
of 30 days;
(b) default in the payment of the principal of or premium, if any,
on any Note at Maturity;
(c) default in the deposit of any payment when due pursuant to the
provisions of Section 9.13 or 10.06;
(d) failure on the part of the Company duly to observe or perform
any of the covenants or agreements on the part of the Company to be performed
and set forth in Section 9.12;
(e) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company set forth in
the Notes or in this Indenture which continues for a period of 30 days after the
date on which there has been given, by registered or certified mail, to the
Company and the Trustee by the Holders of at least 40% in aggregate principal
amount of the Notes at the time Outstanding, a written notice specifying such
failure and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder;
(f) the rendering of a final judgment for the payment of money
in an amount in excess of $20,000,000 (after giving effect to any applicable
insurance and bonds) against the Company and/or any Significant Subsidiary,
(i) which judgment continues undischarged, and is not waived or stayed, for a
period of 45 days after the date on which the
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PRIME HOLDINGS INDENTURE
right to final appeal has expired and (ii) which default continues for a period
of 30 days after the date on which there has been given, by registered or
certified mail, to the Company and the Trustee by the Holders of at least 40% in
aggregate principal amount of the Notes at the time Outstanding, a written
notice specifying the failure described in clause (i) and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
(g) a default under any bond, debenture, note or other evidence of
Indebtedness of the Company (other than the Notes) or any Significant
Subsidiary, or under any mortgage, indenture or other instrument under which
there may be issued or by which there may be secured or evidenced Indebtedness
for money borrowed by the Company or such Significant Subsidiary (including
without limitation the Senior Credit Facility), whether such Indebtedness now
exists or hereafter shall be created, which Indebtedness has a principal amount
of $20,000,000 or more, and which default (i) consists of a failure to pay at
final maturity of such Indebtedness any amount in excess of $20,000,000 due and
payable on or with respect to such Indebtedness (subject to any applicable grace
periods), or (ii) has resulted in such Indebtedness being declared due and
payable, without such acceleration having been rescinded or annulled;
(h) the Company or any Significant Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property; or
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability to pay its debts
generally as they become due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case or proceeding;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of their respective
properties; or
(C) orders the liquidation of the Company or any
Significant Subsidiary;
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PRIME HOLDINGS INDENTURE
and, in each case, such order or decree remains unstayed, undismissed,
undischarged or unbonded and in effect for 60 days.
SECTION 4.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs under clause (h) or (i) of
Section 4.01, then the principal of and premium, if any, and the accrued
interest on all the Notes shall become due and payable immediately. If any
other Event of Default occurs and is continuing, then, and in every such case,
the Holders of not less than 40% in aggregate principal amount of the Notes then
Outstanding, by notice in writing to the Company and to the Trustee, may declare
the principal amount of all the Notes to be due and payable, and upon any such
declaration such principal amount shall become due and payable upon receipt by
the Company and the Trustee of such written notice given hereunder.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for the payment of the amount due has been
obtained by the Trustee as hereinafter provided in this Article Four, the
Holders of a majority in aggregate principal amount of the Outstanding Notes, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) the amount of all overdue installments of interest
on all Notes in the case of an Event of Default specified in Section 4.01(a),
(ii) the principal of and premium, if any, on all Notes
that have become due to the extent such amounts have become due otherwise than
by such declaration of acceleration, and interest thereon (to the extent that
payment of such interest is lawful) at the applicable rate provided in
Section 2.03 in the case of an Event of Default specified in Section 4.01(b),
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the applicable rate provided in
Section 2.03, and
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of Notes that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 4.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
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PRIME HOLDINGS INDENTURE
SECTION 4.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY THE TRUSTEE.
The Company covenants that if:
(a) default is made in the payment of interest on any Note when
such interest becomes due and payable and such default continues for a period of
30 days, or
(b) default is made in the payment of the principal of or premium,
if any, on any Note at the Maturity thereof,
the Company, upon demand of the Trustee, will pay to the Trustee, for the
benefit of the Holders of such Notes, the defaulted amount then due and payable
on such Notes for principal, premium, if any, and interest, with interest (to
the extent that payment of interest on overdue interest is enforceable under
applicable law) upon overdue interest, at the applicable rate provided in
Section 2.03, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, at the request
of the Holders of a majority in aggregate principal amount of the Outstanding
Notes, will institute a judicial proceeding for the collection of the sums so
due and unpaid, will prosecute such proceeding to judgment or final decree and
will enforce against the Company or any other obligor on the Notes and collect
the money adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor on the Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee at the
request of the Holders of a majority in aggregate principal amount of the
Outstanding Notes will proceed to protect and enforce its rights and the rights
of the Holders by such judicial proceedings as such Holders shall request to
protect and enforce 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.
SECTION 4.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor on the
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee, irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest, at the request of a majority
in aggregate principal amount of the Outstanding Notes, by intervention in such
proceedings or otherwise:
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PRIME HOLDINGS INDENTURE
(a) will file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Notes and 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 Holders allowed in such judicial proceedings; and
(b) will collect and receive any funds or other property payable or
deliverable on any such claims and distribute the same;
and any Custodian or similar official in any such judicial proceeding hereby is
authorized by each Holder to make such payments to the Trustee and, in the event
that such payments shall be made directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 5.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 4.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
NOTES.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, after provision for
the payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, shall be for the ratable benefit of the
Holders of the Notes in respect of which such judgment has been recovered.
SECTION 4.06. APPLICATION OF FUNDS COLLECTED.
Any funds collected by the Trustee pursuant to this Article Four
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such funds on account of principal,
premium, if any, or interest, upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: to the payment of all amounts due the Trustee under
Section 5.07;
SECOND: subject to Article 11 hereof, to the payment of the amounts
then due and unpaid for principal of and premium, if any, and interest on the
Notes in respect of which or for the benefit of which such funds have been
collected, ratably, without preference or
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PRIME HOLDINGS INDENTURE
priority of any kind, according to the amounts due and payable on such Notes for
principal, premium, if any, and interest, respectively; and
THIRD: the balance, if any, to the Company.
SECTION 4.07. LIMITATION ON SUITS.
No Holder of a Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder previously has given to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of not less than 40% in aggregate principal amount
of the Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holder,
or to obtain or seek to obtain priority or preference over any other Holder or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders.
SECTION 4.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and (subject to Section 2.08)
interest on such Note at Maturity, or on the applicable Interest Payment Date,
as the case may be, as provided in this Indenture (or, in the case of redemption
or repurchase in conformity with Section 9.13, on the Redemption Date or the
Change of Control Payment Date, respectively), and to institute suit for the
enforcement of any such payment and such rights shall not be impaired or
affected without the consent of such Holder.
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PRIME HOLDINGS INDENTURE
SECTION 4.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 4.10. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee or
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy, to the extent permitted by law, shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 4.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission on the part of the Trustee or of any Holder of
any Note to exercise any right or power accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article Four or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by or at the direction of
the Holders.
SECTION 4.12. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee. The Trustee shall not take any
actions under this Article Four except for actions taken to implement the
instructions of the Holders.
SECTION 4.13. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the
Outstanding Notes on behalf of the Holders of all of the Notes may 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
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PRIME HOLDINGS INDENTURE
(b) in respect of a covenant or provision hereof that under Article
Eight cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 4.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Note by
his acceptance thereof shall be deemed to have agreed, that any court in its
discretion may require, as a condition to initiating or maintaining any suit for
the enforcement of any right or remedy under this Indenture or any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit and that such court in its discretion may 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 the provisions of this Section 4.14 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder or
group of Holders holding in the aggregate more than 40% in principal amount of
the Outstanding Notes or to any suit instituted by any Holder pursuant to
Section 4.07 hereof for the enforcement of the payment of the principal of or
premium, if any, or interest on any Note on or after the Stated Maturity, or on
the applicable Interest Payment Date, as the case may be, as provided in this
Indenture (or, in the case of redemption or repurchase, on or after the
Redemption Date or Change of Control Payment Date).
SECTION 4.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it lawfully may do so) that
it will not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of any stay or extension law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it lawfully
may do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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PRIME HOLDINGS INDENTURE
ARTICLE FIVE
THE TRUSTEE
SECTION 5.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
(b) In the absence of bad faith on its part, the Trustee conclusively
may rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, but in the case of any such
certificates or opinions that by any provision hereof specifically are 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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct, except that:
(i) this Section 5.01(c) shall not be construed to limit
the effect of Section 5.01(a) or 5.01(b);
(ii) 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 grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in aggregate principal amount of the
Outstanding Notes 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; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable ground for believing
that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 5.01.
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PRIME HOLDINGS INDENTURE
SECTION 5.02. NOTICE OF DEFAULTS.
Within 60 days after learning of the occurrence of a default
hereunder, the Trustee shall mail to all Holders, as their names and addresses
appear in the Note Register, notice of all defaults known to the Trustee, unless
such defaults shall have been cured before the giving of such notice. For the
purpose of this Section 5.02, the term "default" means any event that is, or
after notice or lapse of time would become, an Event of Default.
SECTION 5.03. CERTAIN RIGHTS OF TRUSTEE.
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, Note, note or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of a majority of the entire Board of Directors may be evidenced
by a copy thereof certified by the Secretary or an Assistant Secretary of the
Company.
(c) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed), in the absence of gross negligence or bad
faith on its part, may rely on an Officers' Certificate.
(d) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(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, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in complying with such request, order or direction.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, approval, bond,
debenture, note or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and if the Trustee shall determine to make such further inquiry or
investigation it shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney.
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PRIME HOLDINGS INDENTURE
(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 by it with due care
hereunder.
SECTION 5.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes (except the Trustee's
certificate of authentication) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representation as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application
by the Company of Notes or the proceeds thereof.
SECTION 5.05. MAY HOLD NOTES; PAYING AGENT; OTHER INDIVIDUAL RIGHTS OF
TRUSTEE.
The Trustee, any Authenticating Agent, any paying agent, the Note
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Notes and otherwise may deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, paying agent, Note Registrar or other agent. Until the
Company shall appoint another paying agent hereunder, the Trustee shall act as
paying agent. The Trustee, the Authenticating Agent and any paying agent may be
an Affiliate of the Company.
SECTION 5.06. FUNDS HELD IN TRUST.
Funds held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any funds received by it hereunder except as
otherwise agreed with the Company.
SECTION 5.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) except any such expense, disbursement
or advance as may be attributable to its gross negligence or willful misconduct;
and
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PRIME HOLDINGS INDENTURE
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without gross negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 5.07 shall be
secured by a Lien prior to that of the Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Notes.
SECTION 5.08. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the Netherlands
Antilles or United States of America, one of the States thereof or the District
of Columbia, authorized under such laws to exercise corporate trust powers. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 5.08, the Trustee shall resign immediately in the
manner and with the effect specified in this Article Five.
SECTION 5.09. RESIGNATION AND REMOVAL; APPOINTMENT OF A SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee shall become effective until the acceptance of appointment by
the successor Trustee under Section 5.10.
(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
required by Section 5.10 shall not have been delivered to the Trustee within 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 the Act of the Holders
of a majority in aggregate principal amount of the Outstanding Notes delivered
to the Trustee and to the Company.
(d) If at any time the Trustee (i) shall cease to be eligible under
Section 5.08 and shall fail to resign after written request therefor by the
Holders of at least 40% in aggregate principal amount of the Outstanding Notes,
or (ii) shall become incapable of acting, or shall be adjudged a bankrupt or an
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, the Holders of a majority in aggregate
principal amount of the Outstanding Notes may remove the Trustee and appoint a
successor Trustee by an Act of such Holders, in triplicate, one copy of which
instrument shall be delivered to the Trustee so removed, the successor Trustee
and to the Company or, subject to the provisions of Section 4.14, the
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PRIME HOLDINGS INDENTURE
Holders of at least 40% in aggregate principal amount of the Outstanding Notes,
on behalf of themselves and all others similarly situated, may 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 order of a majority of the entire Board of Directors, promptly
shall appoint a successor Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such a vacancy, a successor
Trustee shall be appointed by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Notes delivered to the Company and the
retiring Trustee, the successor Trustee so appointed, forthwith upon its
acceptance of such appointment, shall 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 by the Holders and accepted appointment
in the manner hereinafter provided, subject to Section 4.14, the Holders of at
least 40% in aggregate principal amount of the Outstanding Notes, on behalf of
themselves and all others similarly situated, may 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 the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Note Register. Each notice
shall include the name of the successor Trustee and the address of the Principal
Office of the successor Trustee.
SECTION 5.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Any successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to its predecessor Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
predecessor 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 its predecessor Trustee hereunder; but, on request
of the Company or the successor Trustee, such predecessor Trustee, upon payment
of any amounts then due it pursuant to the provisions of Section 5.07, shall
execute and deliver an instrument transferring to such successor Trustee all the
rights and powers of such predecessor Trustee, and shall duly assign, transfer
and deliver to such successor Trustee all property and funds held by such
predecessor Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts. Any Trustee ceasing to act nevertheless shall retain a Lien
upon all property or funds held or collected by such Trustee (except funds held
in trust for the benefit of Holders of particular Notes) to secure any amounts
then due it pursuant to the provisions of Section 5.07.
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PRIME HOLDINGS INDENTURE
No successor Trustee shall accept appointment as provided in this
Section 5.10 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 5.08.
SECTION 5.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which a corporate Trustee may be merged or
converted 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 of the
corporate trust business of such Trustee, shall be the successor to the Trustee
hereunder, provided such corporation shall be eligible under the provisions of
Section 5.08, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto. In case any Notes shall have been
authenticated but not delivered by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 5.12. APPOINTMENT OF AUTHENTICATING AGENT.
At any time the Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate Notes
issued upon exchange, registration of transfer or partial redemption or
repurchase thereof or pursuant to Section 2.06 or 2.07, and the Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Notes by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall be a
corporation organized and doing business under the laws of the Netherlands
Antilles or the United States of America, one of the States thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent.
If at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 5.12, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 5.12.
Any corporation into which an 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 such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent, shall be the successor
to the Authenticating Agent, provided such corporation otherwise shall be
qualified and eligible under this Section 5.12, without the execution or filing
of any instrument or any further act on the part of the Trustee or the
Authenticating Agent.
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PRIME HOLDINGS INDENTURE
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee at any time may
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be qualified and eligible in accordance with
the provisions of this Section 5.12, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Note Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section 5.12, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 5.07.
If an appointment is made pursuant to this Section 5.12, the Notes may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Notes described in the within-mentioned Indenture.
AIBC SERVICES N.V.,
As Trustee
By:____________________________________
As Authenticating Agent
By:____________________________________"
Authorized Officer
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY THE COMPANY
SECTION 6.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
If the Trustee shall not be the Note Registrar, the Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than five days after each Regular Record
Date, a list, in such form as the Trustee reasonably may require, of the names
and addresses of the Holders as of such Regular Record Date; and
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PRIME HOLDINGS INDENTURE
(b) at such other times as the Trustee may request in writing, within
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 five days prior to the time such
information is furnished.
SECTION 6.02. PRESERVATION OF INFORMATION.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 6.01 or received by the
Trustee in its capacity as Note Registrar. The Trustee may destroy any list
furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
SECTION 6.03. REPORTS BY THE COMPANY.
If the Company shall be subject to the requirement to file annual or
other reports with the Commission or with any securities exchange on which the
Notes are listed, it shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission or with any securities exchange on
which the Notes are listed, copies of such annual reports and of such
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission or any such exchange from time to time by rules
and regulations may prescribe) that the Company shall be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, or such exchange; and
(b) file with the Trustee, in accordance with the rules and
regulations prescribed from time to time by the Commission or by any securities
exchange on which the Notes are listed, such additional information, documents
and reports as it shall file with the Commission or such securities exchange
with respect to compliance by the Company with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations.
ARTICLE SEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.01. COMPANY MAY NOT CONSOLIDATE, ETC., ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or
which leases,
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PRIME HOLDINGS INDENTURE
the properties and assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the United States, one of
the States thereof or the District of Columbia and expressly shall assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and premium, if any, and interest on all Notes and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction no Event of
Default, and no event that, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article Seven and that all conditions precedent herein provided for relating to
such transaction have been met.
SECTION 7.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger by the Company with or into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety to any Person in accordance with
Section 7.01, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease to another Person, the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the
Notes.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any of the Holders, the Company, when
authorized by a majority of its entire Board of Directors, and the Trustee from
time to time and at any time may enter into one or more indentures supplemental
hereto for any of the following purposes:
(a) to evidence the succession of another corporation to the Company
and the assumption by the successor corporation of the covenants, agreements and
obligations of the Company herein and in the Notes;
(b) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
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PRIME HOLDINGS INDENTURE
(c) to add any additional Event of Default;
(d) to convey, transfer, assign, mortgage or pledge to the Trustee,
as security for the Notes, any property or assets; or
(e) to cure any ambiguity or to correct or supplement any provision
herein that may be inconsistent with any other provision herein, or to make such
other provisions in regard to matters or questions arising under this Indenture
as are not inconsistent with the provisions of this Indenture and as shall not
adversely affect the interests of the Holders.
SECTION 8.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes, by Act of the Holders
delivered to the Company and the Trustee, the Company, when authorized by a
majority of its entire Board of Directors, and the Trustee from time to time and
at any time may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provision to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(a) change the Stated Maturity of the principal of, or the Interest
Payment Date with respect to any payment of interest on, any Note, or reduce the
rate or extend the time of payment of interest thereon, or reduce the principal
amount thereof or premium, if any, thereon, or impair the right to institute
suit for the payment on or after the Stated Maturity thereof (or, in the case of
redemption or repurchase in conformity with Section 9.13, on or after the
Redemption Date or Change of Control Payment Date), or change the place of
payment where, or the coin or currency in which, the principal of or premium, if
any, or interest on any Note is payable;
(b) reduce the percentage in principal amount of the Outstanding
Notes the consent of whose Holders is required for any waiver (or compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture;
(c) modify any of the provisions of this Section 8.02 or
Section 4.13;
(d) modify any of the Events of Default enumerated in Section 4.01;
or
(e) modify any of the provisions of Section 9.13 or Article Ten in a
manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this
Section 8.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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PRIME HOLDINGS INDENTURE
SECTION 8.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Eight or the modification
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and 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. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 8.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon execution of any supplemental indenture under this Article Eight,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 8.05. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article Eight may, and shall, if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and a
majority of the entire Board of Directors of the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for the Outstanding
Notes.
ARTICLE NINE
COVENANTS
SECTION 9.01. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company will duly and punctually pay the principal of and premium,
if any, and interest on each of the Notes in accordance with the terms of the
Notes and this Indenture.
SECTION 9.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in Curacao, Netherlands Antilles, an office
or agency where Notes may be presented for payment, redemption or repurchase,
where Notes may be surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and of any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
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PRIME HOLDINGS INDENTURE
such presentations, surrenders, notices and demands may be made or served at the
Principal Office of the Trustee and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
The Company from time to time also may designate one or more other
offices or agencies (in or outside of the above location) where the Notes may be
presented or surrendered for such purposes and from time to time may rescind
such designation; provided, however, that no such designation or rescission
shall relieve the Company of its obligation to maintain an office or agency in
Curacao, Netherlands Antilles, for the payment of the Notes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 9.03. FUNDS FOR NOTE PAYMENTS TO BE HELD IN TRUST.
If the Company at any time shall act as its own paying agent, on or
before each due date of the principal of or premium, if any, or interest on the
Notes it will segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal, premium, if any, or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and promptly will notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more paying agents, before each
due date of the principal of or premium, if any, or interest on the Notes it
will deposit with the principal paying agent a sum sufficient to pay the
principal, premium, if any, or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, and (unless such principal paying agent is the Trustee) the
Company promptly will notify the Trustee of its action or any failure so to act.
The Company will cause each paying agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 9.03,
that such paying agent will:
(a) 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 Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or by any
other obligor on the Notes) in the making of any payment of principal, premium,
if any, or interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent.
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PRIME HOLDINGS INDENTURE
The Company, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, may pay,
or by Company Order direct any paying agent to pay, to the Trustee all funds
held in trust by the Company or such paying agent hereunder, such funds to be
held by the Trustee upon the same trusts as those upon which such funds were
held by the Company or such paying agent; and upon such payment by the Company
or any paying agent to the Trustee, the Company or such paying agent shall be
released from all further liability with respect to such funds.
Any funds deposited with the Trustee or any paying agent, or then held
by the Company, in trust for the payment of the principal of or premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note thereafter, as an
unsecured general creditor, shall look only to the Company for payment thereof,
and all liability of the Trustee or such paying agent with respect to such
funds, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such payment, at the expense of the Company may cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in Curacao,
Netherlands Antilles, and once in two Arabic language newspapers, customarily
published on each Business Day (which is also a business day in the Arabian
Gulf) and of general circulation in the Arabian Gulf, notice that such funds
remain unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such funds then remaining will be repaid to the Company.
SECTION 9.04. CORPORATE EXISTENCE.
Subject to the provisions of Article Seven, the Company will do or
cause to be done, and will cause each Significant Subsidiary to do or cause to
be done, all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve or cause to be
preserved any such right or franchise if a majority of the entire Board of
Directors of the Company or the relevant Significant Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company or the Significant Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 9.05. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its and any Significant Subsidiary's business 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 or
such Significant Subsidiary may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at
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PRIME HOLDINGS INDENTURE
all times; provided, however, that nothing in this Section 9.05 shall prevent
the Company or any Significant Subsidiary from discontinuing the operation or
maintenance of any of such properties if such discontinuance, in the judgment of
the Company or such Significant Subsidiary, as the case may be, is desirable in
the conduct of its business and not disadvantageous in any material respect to
the Holders.
SECTION 9.06. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
and will cause each Significant Subsidiary to pay, discharge or cause to be paid
or discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon the Company or such
Significant Subsidiary or upon the income, profits or property of the Company or
such Significant Subsidiary and (b) all lawful, material claims for labor,
materials and supplies that, if unpaid, might by law become a Lien upon the
property of the Company or such Significant Subsidiary; provided, however, that
neither the Company nor any Significant Subsidiary shall 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.
SECTION 9.07. PROVISION OF REPORTS.
The Company shall furnish to the Trustee copies of semi-annual and
annual financial statements of the Company and its Subsidiaries, together with,
in the case of annual financial statements, the related auditors' reports. The
Trustee shall distribute such copies to Holders as soon as practicable after its
receipt thereof.
SECTION 9.08. WAIVER OF USURY DEFENSE.
To the extent permitted by applicable law, the Company agrees that it
will not assert, plead (as a defense or otherwise) or in any manner whatsoever
claim (and will actively resist any attempt to compel it to assert, plead or
claim) in any action, suit or proceeding that the effective interest rate on the
Notes (or any interest or other amounts payable pursuant to Section 2.03 hereof
or the Notes) violates present or future usury or other laws relating to the
interest payable on any indebtedness and will not otherwise avail itself (and
will actively resist any attempt to compel it to avail itself) of the benefits
or advantages of any such laws.
SECTION 9.09. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in this Article Nine, other than any such
covenant or condition contained in Section 9.01, 9.02, 9.03, 9.04 or 9.13, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Notes at the time Outstanding shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent so expressly
waived and, until such waiver shall
41
PRIME HOLDINGS INDENTURE
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
SECTION 9.10. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 90 days after the end
of each fiscal quarter of the Company, an Officers' Certificate stating whether
or not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions of
Sections 9.01 through 9.07 or Sections 9.10 through 9.13, and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof.
SECTION 9.11. LIMITATION ON INDEBTEDNESS.
Neither the Company nor any of its Subsidiaries will incur any
Indebtedness except that the Company and, if indicated below, its Subsidiaries
shall not be prohibited hereby from incurring:
(a) Indebtedness of the Company under the Notes and this Indenture,
provided that the aggregate principal amount of Indebtedness permitted to be
outstanding on any date by this clause (a) shall not exceed $10,000,000 less the
aggregate principal amount of Notes that would have been redeemed, repurchased
or otherwise repaid on or prior to such date pursuant to the terms of this
Indenture, as in effect on the date hereof;
(b) Indebtedness of the Company or Primeco (which may be guaranteed
by any of its Subsidiaries) under the Senior Credit Facility, provided that the
aggregate principal amount of Indebtedness permitted to be outstanding
(including pursuant to letters of credit and other contingent obligations) on
any date by this clause (b) shall not exceed $350,000,000;
(c) Indebtedness of Primeco comprising Bridge Subordinated Debt in an
aggregate principal amount not in excess of $75,000,000 plus additional
Indebtedness in lieu of payment of cash interest;
(d) Indebtedness of the Company and its Subsidiaries that is
permitted under the Senior Credit Facility, as in effect from time to time
(including without limitation, the Permanent Subordinated Debt (as defined in
the Credit Agreement pursuant to which the Senior Credit Facility is provided));
(e) other Indebtedness of the Company or any of its Subsidiaries, so
long as, and to the extent that, the Interest Coverage Ratio on the last day of
the last fiscal quarter of the Company ended prior to the incurrence of such
Indebtedness, giving PRO FORMA effect to the incurrence of such Indebtedness and
the application of the proceeds thereof (including, without limitation, by
giving pro forma effect in Consolidated EBITDA to earnings of or attributable to
any company or operating assets acquired with the proceeds of such
42
PRIME HOLDINGS INDENTURE
Indebtedness) on the first day of the four-quarter period then ended, is equal
to or greater than 1.00 : 1.00;
(f) Additional Indebtedness of the Company (which may comprise
Indebtedness under the Senior Credit Facility in addition to Indebtedness
otherwise herein permitted) in an aggregate principal amount at any time
outstanding not to exceed $50,000,000;
g) Indebtedness of the Company or any of its Subsidiaries under
Interest Swap Obligations relating to Indebtedness for money borrowed;
(h) Indebtedness of any wholly-owned Subsidiary of the Company to the
Company or any other Subsidiary of the Company or of the Company to any of its
wholly-owned Subsidiaries; and
(i) any Indebtedness of the Company or any of its Subsidiaries the
proceeds of which are used to redeem, repurchase, retire for value, refinance or
refund any Indebtedness referred to in clauses (a) through (h) above.
SECTION 9.12. LIMITATION ON THE PAYMENT OF DIVIDENDS AND PURCHASE OF STOCK.
The Company will not:
(a) declare or pay, or make or set aside, any dividend or
distribution on any share of its common stock (other than dividends payable
solely in shares of common stock of the Company);
(b) purchase, redeem or otherwise acquire or retire any shares of its
capital stock;
(c) set apart any sum for the purchase, redemption or other
acquisition or retirement of any shares of its capital stock; or
(d) make any other distribution, by reduction of capital or
otherwise, on or with respect to any shares of its capital stock;
provided, however, that nothing in this Section 9.12 shall prohibit the Company
from repurchasing or redeeming any of its capital stock pursuant to the terms of
any subscription agreement entered into with any officer, director or employee
of the Company or any of its Subsidiaries.
SECTION 9.13. CHANGE OF CONTROL.
If at any time after the date hereof a Change of Control occurs (the
date on which the Change of Control occurs being referred to herein as the
"Change of Control Date"), then the Company shall promptly make an offer to
purchase for cash (the "Change of
43
PRIME HOLDINGS INDENTURE
Control Offer"), which shall not constitute a redemption for the purposes of
Article Ten hereof, on the last day of the next fiscal quarter of the Company
commencing after the Change of Control Date (the "Change of Control Payment
Date"), all Notes then Outstanding at the purchase price equal to the price
specified in the form of Note for optional redemptions, together with all
accrued interest to and including the Change of Control Payment Date.
Notice of the Change of Control Offer shall be mailed by the Company
not less than 25 days before the Change of Control Payment Date to the Holders
of the Notes at their last registered addresses with a copy to the Trustee. At
least five Business Days prior to the Company's mailing of a notice of Change of
Control Offer, the Company shall notify the Trustee of its obligation to offer
to repurchase all of the Notes. The Change of Control Offer shall remain open
from the time of mailing until the Change of Control Payment Date. The notice
shall be accompanied by a copy of the most recent financial statements furnished
pursuant to Section 9.07 hereof. The notice shall contain all instructions and
materials reasonably necessary to enable such Holders to tender Notes pursuant
to the Change of Control Offer. The notice, which shall govern the terms of the
Change of Control Offer, shall state:
(a) that the Change of Control Offer is being made pursuant to this
Section 9.13, that Notes may be surrendered in whole or in part (in
denominations of $1,000 and integral multiples thereof), and that all Notes will
be accepted for payment;
(b) the purchase price and the Change of Control Payment Date;
(c) that any Note not tendered will continue to accrue interest;
(d) that any Note (or part thereof) accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(e) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Repurchase" on the reverse of the Note
completed, to the place specified in the notice prior to 5:00 p.m., New York
City time, on the Change of Control Payment Date;
(f) that Holders will be entitled to withdraw their election if the
Person designated in the notice receives, not later than 5:00 p.m., New York
City time, on the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note(s) the Holder delivered for purchase and a statement that
such Holder is withdrawing its election to have the Note(s) purchased;
(g) that Holders whose Notes are purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered; and
44
PRIME HOLDINGS INDENTURE
(h) that the Company's obligation to repurchase is limited as set
forth in the second and third sentences of the first paragraph of this
Section 9.13.
On the Change of Control Payment Date, the Company shall (i) accept
for payment Notes or portions thereof tendered pursuant to the Change of Control
Offer, (ii) deposit with the Trustee funds sufficient to pay the purchase price
of all Notes or portions thereof so tendered and (iii) deliver to the Trustee
all Notes so accepted for payment, and the Trustee shall promptly authenticate
and mail to such Holders a new Note equal in principal amount to any unpurchased
portion of any Note surrendered. The Company will notify the Holders of the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
ARTICLE TEN
REDEMPTION OF NOTES
SECTION 10.01. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article Ten.
SECTION 10.02. OPTIONAL REDEMPTION.
Subject to the restrictions specified in the form of Note, the Notes
may be redeemed as a whole at any time or in part from time to time, at the
redemption prices and as otherwise specified in such form of Note for
redemptions, together with all accrued interest to the Redemption Date.
SECTION 10.03. ELECTION TO REDEEM.
The election by the Company to redeem Notes pursuant to Section 10.01
shall be evidenced by a resolution adopted by a majority of the entire Board of
Directors of the Company.
SECTION 10.04. SELECTION BY COMPANY OF NOTES TO BE REDEEMED.
(a) The particular Notes to be redeemed pursuant to Section 10.02, if
less than all the Outstanding Notes are to be redeemed pursuant thereto, shall
be selected by the Company not more than 60 days nor less than 30 days prior to
the Redemption Date, from the Outstanding Notes not previously called for
redemption and, subject to Section 10.04(c) hereof, shall be redeemed pro rata
among the Holders in the proportion that the aggregate amount of Notes held by a
Holder bears to the aggregate amount of Notes Outstanding, provided Notes shall
be selected for redemption in denomination of $1,000 or integral multiples
thereof.
45
PRIME HOLDINGS INDENTURE
(b) The Company promptly shall notify the Trustee in writing of the
Notes selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed.
(c) 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 amount of such Note that has been or is to be redeemed.
SECTION 10.05. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 or more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at his address appearing in the
Note Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the redemption price;
(c) if less than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Notes to be redeemed;
(d) that on the Redemption Date the redemption price will become due
and payable upon each such Note to be redeemed and that interest thereon will
cease to accrue on and after such date; and
(e) the place or places where such Notes are to be surrendered for
payment of the redemption price.
Notice of redemption of Notes to be redeemed at the election of the
Company 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.
SECTION 10.06. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with the paying agent (or, if the Company is acting as its own paying
agent, it shall segregate and hold in trust as provided in Section 9.03) funds
sufficient to pay the redemption price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Notes that are
to be redeemed on that date.
46
PRIME HOLDINGS INDENTURE
SECTION 10.07. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall become due and payable on the Redemption Date, at the
redemption price therein specified, and from and after such date (unless the
Company shall default in the payment of the redemption price and accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with such notice, such Note shall be paid by
the Company at the redemption price, together with all accrued interest 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 registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 2.08.
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 applicable rate specified in
Section 2.03.
SECTION 10.08. NOTES REDEEMED IN PART.
Any Note that is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 9.02 (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, at the expense of the Company, a new
Note or Notes, of any authorized denomination requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal amount of the Note so surrendered.
ARTICLE ELEVEN
SUBORDINATION
SECTION 11.01. AGREEMENT OF SUBORDINATION.
The Company covenants and agrees, and each Holder of Notes by his
acceptance thereof likewise covenants and agrees, that all Notes shall be issued
subject to the provisions of this Article Eleven; and each Person holding any
Note, whether upon original issue or exchange or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment of the principal of and premium, if any, interest and any
other amount due on all Notes, to the extent and in the manner hereinafter set
forth, shall be subordinated and subject in right of payment to the prior
payment in full in cash of all Senior Indebtedness (including interest accruing
after the filing of a petition by or against the
47
PRIME HOLDINGS INDENTURE
Company under any Bankruptcy Law, whether or not allowed as a claim), whether
outstanding at the date hereof or hereafter incurred.
SECTION 11.02. PAYMENTS TO HOLDERS OF NOTES.
In the event and during the continuation of any default in the payment
of principal of, premium, if any, or interest on or any other payment due under
the Senior Credit Facility, then, unless and until such default shall have been
cured or waived, no payment or distribution shall be made by or on behalf of the
Company with respect to the principal of or premium, if any, interest or any
other payment due on or with respect to the Notes.
In the event and during the continuation of any default (other than a
default of any payment due) with respect to the Senior Credit Facility
permitting the Senior Lenders thereunder to accelerate the maturity thereof,
then, unless and until such default shall have been cured or waived, no payment
or distribution shall be made by or on behalf of the Company with respect to the
principal of or premium, if any, interest or any other payment due on or with
respect to the Notes, if written notice of such default shall have been given to
the Trustee and the Company by the Bank Agent, during the period commencing on
the date on which such notice is received by the Company and the Trustee and
ending on the earlier to occur of (a) the 179th day thereafter or (b) the day on
which such default is cured or waived; provided, however, that this sentence
shall not prohibit any payment of any installment of principal of or premium, if
any, interest or any other payment due on the Notes for more than 179 days in
any 365-day period and provided, further, that no default that once formed the
basis for any such notice by the Bank Agent shall form the basis of any
subsequent notice under this paragraph. For purposes of the preceding sentence,
"default" shall mean any default or failure to observe or perform any provision
of the Senior Credit Facility, after the giving of notice, the expiration of any
grace periods, or both, so that the Senior Lenders are entitled to accelerate
the maturity thereof.
Upon any payment by the Company, or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution, winding-up, total or partial
liquidation or reorganization of the Company or its property, whether voluntary
or involuntary, or any assignment for the benefit of creditors or any marshaling
of assets and liabilities, or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due or to become due upon all Senior Indebtedness first
shall be paid in full in cash, or payment thereof provided for in cash in
accordance with its terms, before any payment is made on account of the
principal of or premium, if any, interest or any other amount due on or with
respect to the Notes; and upon any such dissolution, winding-up, liquidation,
reorganization, assignment, marshaling or proceedings:
(a) the Senior Lenders shall be entitled to receive payment in full
in cash and cash equivalents of all Senior Indebtedness before the Holders of
the Notes and the Trustee shall be entitled to receive any payment of principal
or premium, if any, or interest on or other amounts payable with respect to the
Notes; and
48
PRIME HOLDINGS INDENTURE
(b) any payment by the Company, or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Notes or the Trustee would be entitled
except for the provisions of this Article Eleven, shall be paid by the Company
or by any custodian, agent or other Person making such payment or distribution,
or by any Holder, the Trustee, any paying agent or any depositary if received by
it, directly to the Senior Lenders or their representative or representatives,
or the trustee or trustees under any indenture pursuant to which any instruments
evidencing any such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay all such Senior
Indebtedness in full in cash or cash equivalents, after giving effect to any
concurrent payment or distribution to or for the Senior Lenders.
In the event that, notwithstanding the foregoing, any payment by or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the Holders before all such Senior Indebtedness is
paid in full in cash, such payment or distribution shall be held in trust for
the benefit of and shall be paid over or delivered to the Senior Lenders or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instrument evidencing any such Senior
Indebtedness may have been issued, as their respective interests may appear, for
application to the payment of all such Senior Indebtedness remaining unpaid to
the extent necessary to pay all such Senior Indebtedness in full in cash or cash
equivalents in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the benefit of the Senior Lenders.
The consolidation of the Company with or the merger of the Company
into another corporation, or the liquidation or dissolution of the Company
following the conveyance or transfer of its property or assets as an entirety or
substantially as an entirety to another corporation, upon the terms and
conditions provided for in Article Seven, shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 11.02
if such other corporation, as a part of such consolidation, merger, conveyance
or transfer, shall comply with the conditions stated in Article Seven. Nothing
in this Section 11.02 shall apply to claims of or payments to the Trustee
pursuant to Section 5.07.
The Senior Lenders, at any time and from time to time, without the
consent of or notice to the Holders, without incurring responsibility to the
Holders and without impairing or releasing the obligations of the Holders
hereunder to the Senior Lenders, may: (a) change the manner, place or terms
of payment or change or extend the time of payment of, or renew or alter, the
Senior Indebtedness, or otherwise amend in any manner Senior Indebtedness or
any instrument evidencing the same or any agreement under which the Senior
Indebtedness is outstanding; (b) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing the Senior
Indebtedness; (c) release any Person liable in any manner for the collection
or payment of the Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company or any other Person.
For purposes of this Article Eleven, "payment" of or with respect to
the Notes includes any payment, redemption, acquisition, deposit, segregation,
retirement, sinking fund
49
PRIME HOLDINGS INDENTURE
payment and defeasance of or with respect to the Notes, but does not include the
delivery of Outstanding or previously redeemed Notes in satisfaction of all or
any part of any sinking fund payment.
SECTION 11.03. SUBROGATION OF NOTES.
Subject to the payment in full in cash of all Senior Indebtedness at
the time outstanding, the Holders shall be subrogated to the rights of the
Senior Lenders to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal of and premium, if any, and interest on the Notes shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions to
the Senior Lenders of any cash, property or securities to which the Holders of
the Notes or the Trustee would be entitled except for the provisions of this
Article Eleven, and no payment over pursuant to the provisions of this Article
Eleven to or for the benefit of the Senior Lenders by the Holders or the
Trustee, shall, as between the Company, its creditors other than the Senior
Lenders and the Holders, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article Eleven are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the Senior Lenders on the
other hand.
Nothing contained in this Article Eleven or elsewhere in this
Indenture (except to the extent contemplated by Section 4.02) or in the Notes is
intended to or shall impair, as between the Company, its creditors other than
the Senior Lenders and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the principal of and premium,
if any, and interest on the Notes as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Company other than the
Senior Lenders, nor shall anything herein (except to the extent contemplated by
Section 4.02) or therein prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Eleven of the
Senior Lenders in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets or securities of the
Company referred to in this Article Eleven, the Trustee, subject to the
provisions of Section 5.01, and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation, reorganization, assignment, marshaling or
proceedings are pending, or a certificate of any Custodian, agent or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the Senior Lenders and the holders of other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Eleven.
50
PRIME HOLDINGS INDENTURE
SECTION 11.04. AUTHORIZATION BY HOLDERS OF NOTES.
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination provided in this Article Eleven
and appoints the Trustee his attorney-in-fact for any and all such purposes
including, without limitation in the event of any dissolution, winding-up,
liquidation, marshaling of assets and liabilities or reorganization of the
Company (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, the filing of a claim for the unpaid principal balance of and premium,
if any, and accrued interest on and other obligations with respect to the Notes
in the form required in those proceedings.
SECTION 11.05. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company that would prohibit the making of any payment or
distribution to or by the Trustee in respect of the Notes pursuant to the
provisions of this Article Eleven. Notwithstanding the provisions of this
Article Eleven or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any fact that would prohibit the
making of any payment or distribution to or by the Trustee in respect of the
Notes pursuant to the provisions of this Article Eleven, unless and until a
Responsible Officer shall have received written notice thereof at the Principal
Office of the Trustee from the Company or a Senior Lender or from any trustee
for Senior Indebtedness; and prior to the receipt of any such written notice the
Trustee, subject to the provisions of Section 5.01, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 11.05
within one Business Day prior to the date upon which by the terms hereof any
funds may become payable for any purpose (including without limitation the
payment of the principal of or premium, if any, or interest on any Note), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such funds and to apply the same to the
purpose for which they were received and shall not be affected by any notice to
the contrary that may be received by it within one Business Day prior to such
date.
The Trustee, subject to the provisions of Section 5.01, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a Senior Lender (or a trustee or agent on behalf of a
Senior Lender) to establish that such notice has been given by a Senior Lender
or a trustee or agent on behalf of any such Senior Lender. In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a Senior Lender to participate in any
payment or distribution pursuant to this Article Eleven, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other fact pertinent to the rights of such Person under this Article Eleven, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person
51
PRIME HOLDINGS INDENTURE
pending judicial determination as to the right of such Person to receive such
payment or distribution.
SECTION 11.06. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Eleven in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other Senior Lender, and no
provision of this Indenture shall deprive the Trustee of any of its rights as
such Senior Lender.
With respect to the Senior Lenders, the Trustee undertakes to perform
or to observe only such covenants and obligations as are specifically set
forth in this Article Eleven, and no implied covenant or obligation with
respect to the Senior Lenders shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
Senior Lenders. Whenever a distribution is to be made or a notice given to
Senior Lenders, the distribution may be made and the notice given to their
representative(s).
SECTION 11.07. NO IMPAIRMENT OF SUBORDINATION.
No right of any present or future Senior Lender to enforce
subordination as herein provided at any time in any way shall be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such Senior Lender, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such Senior Lender may
have or otherwise be charged with.
SECTION 11.08. ARTICLE ELEVEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal, premium, if
any, interest or any other amount due hereunder or on the Notes by reason of any
provision in this Article Eleven shall not be construed as preventing the
occurrence of an Event of Default under Section 4.01 but the remedies in respect
thereof are limited as set forth in Article Four and any amounts realized
through the exercise of such remedies shall be subject to the provisions of this
Article Eleven.
SECTION 11.09. CONTINUING EFFECT.
THE FOREGOING PROVISIONS CONSTITUTE A CONTINUING OFFER TO ALL PERSONS
WHO BECOME, OR CONTINUE TO BE, SENIOR LENDERS; AND SUCH
PROVISIONS ARE MADE FOR THE BENEFIT OF THE SENIOR LENDERS, AND
SUCH SENIOR LENDERS ARE HEREBY MADE OBLIGEES HEREUNDER THE SAME
AS IF THEIR NAMES WERE WRITTEN HEREIN AS SUCH, AND THEY AND/OR
EACH OF THEM MAY PROCEED TO ENFORCE SUCH PROVISIONS AND NEED NOT
PROVE RELIANCE THEREON.
52
PRIME HOLDINGS INDENTURE
SECTION 11.10. INDIVIDUAL RIGHTS OF SENIOR LENDERS.
A Senior Lender in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Subsidiary or Affiliate of the Company with the same rights as if it were not a
Senior Lender.
SECTION 11.11. ARTICLE APPLICABLE TO PAYING AGENTS AND DEPOSITARIES.
In case at any time any paying agent or depositary other than the
Trustee shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and including such
paying agent or depositary within its meaning as fully for all intents and
purposes as if such paying agent or depositary were named in this Article in
addition to or in place of the Trustee; PROVIDED, however, that Section 11.06
shall not apply to the Company if it acts as paying agent.
AIBC Services N.V. hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed, and their respective corporate seals, if any, to be hereunto
affixed and attested, all as of the date first written above.
PRIME HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: President
Attest:
By: /s/ Xxxxxxxxxxx X. X'Xxxxx
----------------------------
Name: Xxxxxxxxxxx X. X'Xxxxx
Title: Secretary
AIBC SERVICES N.V.
By its Managing Director
Amaco (Curacao) N.V.
By: /s/
---------------------------
53
PRIME HOLDINGS INDENTURE
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED
WITHOUT REGISTRATION UNDER SUCH ACT EXCEPT UPON DELIVERY OF AN OPINION OF
COUNSEL, SATISFACTORY IN FORM AND SUBSTANCE TO THE ISSUER, THAT ANY SUCH SALE,
PLEDGE, HYPOTHECATION OR OTHER TRANSFER MAY PROPERLY BE MADE WITHOUT
REGISTRATION UNDER SUCH ACT.
PRIME HOLDING, INC.
14% Senior Subordinated Note Due March 31, 2006
No.________________ $_________________
AS STATED IN THE INDENTURE, THE RIGHTS OF THE HOLDER HEREOF ARE SUBJECT TO
SUBORDINATION IN CERTAIN EVENTS TO ALL SENIOR INDEBTEDNESS (AS DEFINED IN THE
INDENTURE REFERRED TO HEREIN) OF THE COMPANY
Prime Holding, Inc., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ____________________________,
or registered assigns, the principal sum of US $________________________ on
March 31, 2006, and to pay interest thereon at the rate of 14% per annum from
the date this Note was originally issued under the Indenture or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, until Maturity. Interest shall be computed for such
period on the basis of the actual number of days elapsed in a 360-day year.
Interest at such rate shall be payable in arrears on each November 15 and
May 15, commencing May 15, 1995 and at Maturity. Interest shall be payable at
the rate of 16% per annum on any overdue principal and on any overdue interest,
to the extent that the payment of such interest shall be legally enforceable.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date, will be paid, as provided in the Indenture, to the Person
in whose name this Note is registered at the close of business on the Regular
Record Date for such interest, which shall be the November 1 and May 1, as the
case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for on any Interest Payment Date forthwith
will cease to be payable to the Holder on such Regular Record Date by virtue of
his having been such Holder and shall be paid to the Person in whose name this
Note is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice of which
shall be given to Holders not less than ten days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payment of the principal of and premium, if
any, and interest on this Note will be made at the office or agency of the
Company maintained for such purpose in Curacao, Netherlands Antilles, in such
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts; provided, however,
that at the option of the Company payment may be made by check mailed to the
Person entitled thereto at his address appearing on the Note Register.
Notwithstanding the foregoing, the principal of and premium, if any, and
interest on this Note (other than the final payment of principal) at the option
of the Holder hereof shall be made directly to such Holder, by wire transfer of
immediately available funds, without presentment, to the address designated by
such Holder in writing. Before selling or otherwise transferring this Note,
such Holder will make a notation hereon of the aggregate amount of all payments
of principal theretofore made, and of the date to which interest has been paid.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth on this front side of this Note.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS THEREOF.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee as provided in the Indenture.
Capitalized terms used herein that are not defined herein but that are
defined in the Indenture are used as therein defined.
IN WITNESS WHEREOF, Prime Holding, Inc. has caused this instrument to
be duly executed under its corporate seal.
PRIME HOLDING, INC.
By: _____________________________________
Title: __________________________________
Attest:
_______________________________________
Title: Secretary
2
EXHIBIT A--FORM OF NOTE
(REVERSE OF NOTE)
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 14% Senior Subordinated Notes due March 31, 2006 (the
"Notes"), limited in aggregate principal amount to not more than $10,000,000 and
to be issued under an Indenture dated as of November 29, 1994 (the "Indenture"),
from the Company to AIBC Services N.V. (the "Trustee", which term includes any
successor Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered.
Subject to the terms of Article Ten and Eleven of the Indenture, the
Notes are subject to redemption at any time or from time to time, upon not less
than 30 days' nor more than 60 days' notice, as a whole or in part, at the
election of the Company, at the following optional redemption prices (expressed
as a percentage of principal amount redeemed), if redeemed during the period
beginning on the respective date indicated below and ending on the day before
the next date indicated, plus accrued and unpaid interest thereon to the date of
such redemption on the amount redeemed:
DATE OPTIONAL REDEMPTION PRICE
December , 1994 105.0%
May 15, 1995 104.5%
November 15, 1995 104.0%
May 15, 1996 103.5%
November 15, 1996 103.0%
May 15, 1997 102.5%
November 15, 1997 102.0%
May 15, 1998 101.5%
November 15, 1998 101.0%
May 15, 1999 100.5%
November 15, 1999 and thereafter 100.0%
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EXHIBIT A--FORM OF NOTE
Interest that is due and payable on or prior to any such Redemption
Date will be payable to the Holders of such Notes of record at the close of
business on the relevant Record Date referred to on the face hereof, all as
provided in the Indenture.
In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture further provides that, upon the occurrence of a Change
of Control, the Company shall notify the Trustee in writing and shall promptly
make an offer to purchase, on the last day of the next fiscal quarter of the
Company commencing after the Change of Control Date (the "Change of Control
Payment Date"), all Notes then Outstanding at a purchase price equal to the
price specified in this Note for optional redemption, together with accrued
interest to and including the Change of Control Payment Date.
If an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all Notes may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
So long as any Senior Indebtedness is outstanding or the Company shall
have any outstanding obligation thereunder, the Company may not amend or modify
in certain respects any of the subordination provisions contained in the
Indenture as against any Senior Lender who has not consented thereto.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time Outstanding, evidenced as in
the Indenture provided, to execute supplemental indentures adding any provision
to or changing in any manner or eliminating any provision of the Indenture or of
any supplemental indenture or modifying in any manner the rights of the Holders
of the Notes; provided that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby, (a) change the
Stated Maturity of the principal of, or Interest Payment Date with respect to
any payment of interest on, any Note, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or premium,
if any, thereon, or impair the right to institute suit for the payment on or
after the Stated Maturity thereof or Interest Payment Date therefor, as the case
may be (or, in the case of redemption or repurchase, on or after the Redemption
Date or Change of Control Payment Date), or change the place of payment where,
or the coin or currency in which, the principal, premium, if any, or interest is
payable, (b) reduce the aforesaid percentage in principal amount of the
Outstanding Notes the consent of whose Holders is required to waive compliance
with certain provisions of the Indenture or certain defaults thereunder or to
consent to any such supplemental indenture or (c) modify certain sections of the
Indenture or the Events of Default thereunder. The Indenture also provides
that, prior to any declaration accelerating the maturity of the Notes, the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding on behalf of the
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EXHIBIT A--FORM OF NOTE
Holders of all of the Notes may waive any past default or Event of Default under
the Indenture and its consequences except a default in the payment of the
principal of or premium, if any, or interest on any of the Notes and certain
other defaults. Any such consent or waiver by the Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and any Note that may be issued
in exchange or substitution herefor, irrespective of whether or not any notation
thereof is made upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture (except to the extent contemplated by Section 4.02 of the
Indenture) shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the place, at the times, at the rate and in the coin or
currency herein prescribed.
The Notes are issuable only in registered form (pursuant to Regulation
Section 5f.103-1 of the Federal Income Tax Regulations) without coupons in
denominations of $1,000 and any integral multiple thereof and may be transferred
only by surrender of this Note and the reissuance by the Company of this Note to
the transferee or the issuance by the Company of a new Note or new Notes to the
transferee or transferees. At the office or agency of the Company maintained
for such purpose and in the manner and subject to the limitations provided in
the Indenture, Notes may be exchanged for a like aggregate principal amount of
Notes of other authorized denominations.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company maintained for such purpose, a new Note or Notes
of authorized denominations for an equal aggregate principal amount will be
issued to the transferee in exchange herefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company, the Trustee, any paying agent, and any Note Registrar may
deem and treat the Person in whose name this Note is registered as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Company or any Note Registrar), for the purpose of receiving
payment hereof and for all other purposes, and none of the Company, the Trustee,
any paying agent or any Note Registrar shall be affected by any notice to the
contrary. All payments made to or upon the order of such registered Holder, to
the extent of the sum or sums paid, shall satisfy and discharge liability for
amounts payable on this Note.
The rate of interest payable hereon shall in no event exceed the
maximum rate permissible under applicable law. If interest would otherwise be
payable to the Holder hereof in excess of the maximum lawful amount, the
interest payable shall be reduced to the maximum amount permitted under
applicable law; and if the Holder shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
principal
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EXHIBIT A--FORM OF NOTE
hereof and not to payment of interest, or if such excessive interest exceeds the
unpaid balance of principal hereon, such excess shall be refunded to the
Company.
OPTION OF HOLDER TO ELECT REPURCHASE
If you wish to have this Note repurchased by the Company pursuant to
Section 9.13 of the Indenture, check the box: /__/ If you wish to have a portion
of this Note repurchased by the Company pursuant to Section 9.13 of the
Indenture, state the amount (which must be $1,000 or integral multiples of
$1,000):
$ __________________________
DATE: ______________________
YOUR SIGNATURE: ____________________________
SIGNATURE GUARANTEE:________________________
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EXHIBIT A--FORM OF NOTE
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
AIBC SERVICES N.V.,
as Trustee
By: ____________________
Authorized Officer
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EXHIBIT A--FORM OF NOTE