EXHIBIT T3C
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY LEASING, INC.
AND
U.S. BANK NATIONAL ASSOCIATION
AS TRUSTEE
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INDENTURE
DATED AS OF DECEMBER 31, 2001.
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TABLE OF CONTENTS
Page
INDENTURE......................................................................... 1
RECITALS.......................................................................... 1
ARTICLE ONE....................................................................... 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions................................................ 1
Section 102 Compliance Certificates and Opinions....................... 9
Section 103 Form of Documents Delivered to Trustee..................... 10
Section 104 Acts of Note Holders....................................... 10
Section 105 Notices, etc., to Trustee and Company...................... 11
Section 106 Notice to Note Holders; Waiver............................. 11
Section 107 Effect of Headings and Table of Contents................... 12
Section 108 Successors and Assigns..................................... 12
Section 109 Separability Clause........................................ 12
Section 110 Benefits of Indenture...................................... 12
Section 111 Governing Law.............................................. 12
Section 112 Legal Holidays............................................. 12
Section 113 Trust Indenture Act Controls............................... 13
ARTICLE TWO....................................................................... 13
NOTE FORMS
Section 201 Form Generally............................................. 13
Section 202 Form of Face of Notes...................................... 13
Section 203 Form of Reverse Side of Note............................... 14
Section 204 Form of Certificate of Authentication and
Form of Assignment......................................... 17
ARTICLE THREE..................................................................... 18
THE NOTES
Section 301 Title and Terms Generally.................................. 18
Section 302 Denominations.............................................. 18
Section 303 Execution, Authentication, Delivery and Dating............. 19
Section 304 Temporary Notes............................................ 19
Section 305 Registration, Transfer and Exchange........................ 20
Section 306 Mutilated, Destroyed, Lost and Stolen Notes................ 21
Section 307 Payment of Interest; Interest Rights Preserved............. 21
Section 308 Persons Deemed Owners...................................... 23
Section 309 Cancellation............................................... 23
Section 310 Computation of Interest.................................... 23
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Section 311 Authentication and Delivery of Original Issue.............. 23
ARTICLE FOUR...................................................................... 23
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture.................... 23
Section 402 Application of Trust Money................................. 24
ARTICLE FIVE...................................................................... 25
REMEDIES
Section 501 Events of Default.......................................... 25
Section 502 Acceleration of Maturity; Rescission and Annulment......... 26
Section 503 Collection of Indebtedness and Suits for
Enforcement by Trustee..................................... 27
Section 504 Trustee May File Proofs of Claim........................... 27
Section 505 Trustee May Enforce Claims Without Possession
of Notes................................................... 28
Section 506 Application of Money Collected............................. 28
Section 507 Limitation on Suits........................................ 28
Section 508 Unconditional Right of Note Holders to Receive
Principal and Interest..................................... 29
Section 509 Restoration of Rights and Remedies......................... 29
Section 510 Rights and Remedies Cumulative............................. 29
Section 511 Delay or Omission Not Waiver............................... 30
Section 512 Control by Note Holders.................................... 30
Section 513 Waiver of Past Defaults.................................... 30
Section 514 Undertaking for Costs...................................... 30
Section 515 Waiver of Stay or Extension Laws........................... 31
ARTICLE SIX....................................................................... ▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Duties and Responsibilities........................ 31
Section 602 Notice of Defaults......................................... 32
Section 603 Certain Rights of Trustees................................. 33
Section 604 Not Responsible for Recitals or Issuance of Notes.......... 34
Section 605 Trustee May Hold Notes..................................... 34
Section 606 Money Held in Trust........................................ 34
Section 607 Compensation and Reimbursement............................. 34
Section 608 Disqualification; Conflicting Interests.................... 35
Section 609 Trustee Required; Eligibility.............................. 39
Section 610 Resignation and Removal; Appointment of Successor.......... 39
Section 611 Acceptance of Appointment by Successor..................... 41
Section 612 Merger, Conversion, Consolidation or Succession
to Business................................................ 41
Section 613 Preferential Collection of Claims Against Company.......... 41
Section 614 Appointment of Authenticating Agent........................ 45
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ARTICLE SEVEN..................................................................... 46
NOTE HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses
Of Note Holders............................................ 46
Section 702 Preservation of Information; Communications to
Note Holders............................................... 46
Section 703 Reports by the Company..................................... 47
Section 704 Reports by Trustee......................................... 49
ARTICLE EIGHT..................................................................... 50
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801 Company May Consolidate, Etc., Only on Certain Terms....... 50
Section 802 Successor Substituted...................................... 51
ARTICLE NINE...................................................................... 51
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Note Holders.... 51
Section 902 Supplemental Indentures with Consent of Note Holders....... 52
Section 903 Execution of Supplemental Indentures....................... 52
Section 904 Effect of Supplemental Indentures.......................... 53
Section 905 Reference in Notes to Supplemental Indentures.............. 53
Section 906 Effect on Senior Debt...................................... 53
ARTICLE TEN....................................................................... 53
COVENANTS
Section 1001 Payment of Principal and Interest.......................... 53
Section 1002 Maintenance of Office or Agency............................ 53
Section 1003 Money for Note Payments to be Held in Trust................ 54
Section 1004 Maintenance of Corporate Existence, Licensing and Rights... 55
Section 1005 Payment of Taxes and Assessments........................... 55
Section 1006 Maintenance of Properties, Insurance; Books and
Records; Compliance with Law............................... 55
Section 1007 Limitation on Transactions with Affiliates................. 56
Section 1008 Limitation on Dividends and Other Payment Restrictions
Affecting a Subsidiary/Restricted Subsidiary............... 56
Section 1009 Waiver of Certain Covenants................................ 56
ARTICLE ELEVEN.................................................................... 57
REDEMPTION OF NOTES
Section 1101 Optional Redemption........................................ 57
Section 1102 Applicability of Article................................... 57
Section 1103 Election to Redeem; Notice to Trustee...................... 57
Section 1104 Selection by Trustee of Notes to be Redeemed............... 57
Section 1105 Notice of Redemption....................................... 58
Section 1106 Deposit of Redemption Price................................ 58
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Section 1107 Notes Payable on Redemption Date........................... 59
Section 1108 Notes Redeemed in Part..................................... 59
ARTICLE TWELVE.................................................................... 59
SUBORDINATION OF NOTES
Section 1201 Agreement to Subordinate................................... 59
Section 1202 Distribution of Assets, Etc................................ 59
Section 1203 No Payment to Note Holders if Senior
Debt is in Default......................................... 60
Section 1204 Subrogation................................................ 60
Section 1205 Obligation of Company Unconditional........................ 61
Section 1206 Payments on Notes Permitted................................ 61
Section 1207 Effectuation of Subordination by Trustee................... 61
Section 1208 Knowledge of Trustee....................................... 62
Section 1209 Rights of Holders of Senior Debt Not Impaired.............. 62
Section 1210 Trustee Not Fiduciary for Holders of Senior Debt........... 62
Section 1211 Rights of Trustee as Holder of Senior Debt................. 62
Section 1212 Article Applicable to Paying Agents........................ 62
Section 1213 Rights and Obligations Subject to Power of Court........... 62
ARTICLE THIRTEEN.................................................................. 63
REDEMPTION AT OPTION OF HOLDER IN CERTAIN CIRCUMSTANCES
Section 1301 Redemption Option Upon Death of Holder..................... 63
Section 1302 Redemption of Notes........................................ 63
Section 1303 Notes Redeemed in Part..................................... 65
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INDENTURE
THIS INDENTURE, dated as of December 31, 2001, between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
COMPANY LEASING, INC., an
Iowa corporation (the "Company"), having its principal
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and U.S. BANK NATIONAL
ASSOCIATION ("Trustee").
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized an issue its 6% Notes Due December 31, 2004 (the "Notes") in the
total aggregate principal amount of up to $1,984,680, to be issued as fully
registered Notes, to be authenticated by the Trustee, to be payable and to be
redeemable all as hereinafter provided; and
WHEREAS, the Trustee has power to enter into this Indenture and to accept
and execute the trusts herein created; and
WHEREAS, the Company represents that all acts and things necessary to
make the Notes, when executed by the Company, authenticated and delivered by the
Trustee as in this Indenture provided and issued, the valid, binding and legal
obligations of the Company, and to constitute this instrument a valid indenture
and agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized, and the Company, in the exercise of each and
every right and power in it vested, executes this Indenture and proposes to
make, execute, issue and deliver the Notes.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, in order to provide for
the payment of the principal of and interest on the Notes issued under this
Indenture according to their tenor and effect and the performance and observance
of each and all of the covenants and conditions herein and therein contained,
for and in consideration of the premises and of the purchase and acceptance of
the Notes by the respective purchasers thereof and for other good and valuable
consideration, the receipt whereof is hereby acknowledged, the Company has
executed and delivered this Indenture in trust for the equal and proportionate
benefit, security and protection of all of the Note Holders issued or to be
issued under and secured by this Indenture, without preference, priority or
distinction as to lien or otherwise of any of Notes over any of the others;
THIS INDENTURE FURTHER WITNESSETH, that the Company has agreed and covenanted
with the respective Note Holders from time to time as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
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(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular.
(2) all other terms used herein which are defined in the
Trust Indenture Act of 1939, as amended, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"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 or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. Without limiting the generality of the foregoing, at the date of this
Indenture, the "Affiliates" of the Company include any Subsidiary and the
Company's parent company.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Notes.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the city in which the
principal office of the Trustee is located are authorized or obligated by law or
executive order to close.
"Capitalized Lease Obligation" means any lease or other agreement for the
use of property which, in accordance with GAAP, should be capitalized on the
lessee's or user's balance sheet.
"Cash Equivalents" means, with respect to any person at any date of
determination, any of the following held by such person on a consolidated basis
(other than those held by Restricted Subsidiaries), (i) any evidence of
Indebtedness with a maturity of 180 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledge in support thereof); (ii) certificates of deposit or
acceptances with a maturity of 180 days or less of, or a savings account in, any
financial institution that is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $10,000,000;
(iii) commercial paper with a maturity of 180 days or less issued by a
corporation
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(except any Affiliate of the Company) organized under the laws of any state of
the United States of America or the District of Columbia and rated at least A-1
by Standard & Poor's Corporation or at least P-1 by ▇▇▇▇▇'▇ Investors Service,
Inc.; (iv) repurchase agreements and reverse repurchase agreements relating to
marketable obligations issued or unconditionally guaranteed by the United States
of America or issued by any agency thereof and backed by the full faith and
credit of the United States of America, in each case maturing within one year
from the date of acquisition; provided, however, that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency; (v) instruments backed by letters of
credit issued by financial institutions satisfying the conditions of (ii) above;
and (vi) mutual funds or similar securities, not less than 80% of the assets of
which are invested in securities of the type referred to in clauses (i) through
(v).
"Certificate of Independent Public Accountants" means a certificate
signed by an independent public accountant or firm of independent public
accountants (who may be the independent public accountants regularly retained by
the Company). Such accountant or firm shall be entitled to rely upon any Opinion
of Counsel as to the interpretation of any legal matters relating to such
certificate. The acceptance by the Trustee of, or its actions on, such a
certificate shall be sufficient evidence that such accountant is reasonably
acceptable to the Trustee. Any certificate or opinion of any independent firm of
public accountants filed with the Trustee shall contain a statement that such
firm is independent
"Code" means the Internal Revenue Code of 1986, as amended.
"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 and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" means the Company's Class A Common Stock, no par value,
authorized at the date this Indenture is executed and shares of any class or
classes resulting from any reclassification or reclassifications thereof which
have no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and also shall include stock of the Company of any other class, whether
now or hereafter authorized, which ranks, or is entitled to a participation, as
to assets or dividends, substantially on a parity with such Common Stock or
other class of stock into which such Common Stock may have been changed;
provided however, that stock that is convertible into Common Stock, warrants or
other rights to purchase Common Stock will not be deemed to be Common Stock.
"Company" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Leasing, Inc., an
Iowa
corporation, until a successor Person shall have become such pursuant to the
provisions of this Indenture and thereafter "Company" shall mean such successor
Person.
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"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its President or any Vice
President, and by its Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary, and delivered to the Trustee.
"Company Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors of the Company and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Consolidated" when used in conjunction with any other defined term means
the aggregate amount of the items included within the defined term of the
Company on a consolidated basis in accordance with GAAP, eliminating
inter-company items.
"Corporate Trust Office," when used with respect to the Trustee means the
principal office of the Trustee in St. ▇▇▇▇, Minnesota, at which at any
particular time its corporate trust business shall be administered, which office
is on the date of this Indenture located at U.S. Bank National Association or
said office of any successor Trustee.
"Note Holder" means a Person in whose name a Note is registered on the
Note Register, or the beneficial owner of such Notes if record ownership is held
by a nominee.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Notes" means the 6% Notes Due December 31, 2004 issued pursuant to this
Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any capital stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Indebtedness, or is redeemable
at the option of the holder thereof, in whole or in part, in each case on or
prior to the Stated Maturity of the Notes.
"Dividends" means payments in respect of the Company's Common Stock in
either cash or property, but shall not include payments solely in Common Stock
or distributions in the form of rights to acquire Common Stock.
"Eligible Person" means an employee or agent of the Company.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Notes" shall mean the notes issued by the Company to the public
pursuant to the Indenture dated June 11, 1996.
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"Financial Statements" means the statement of operations, balance sheet,
and/or statement of cash flows of any Person prepared in accordance with GAAP.
"GAAP" means generally accepted accounting principles consistently
applied.
"Guaranty" by any Person means any obligations, including letters of
credit, both standby and irrevocable in nature, other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection
guaranteeing any Indebtedness, dividend, or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, all obligations incurred through an agreement,
contingent or otherwise, by such Person (i) to purchase such Indebtedness or
obligation or any property or assets constituting security therefor; (ii) to
advance or supply funds for the purchase or payment of such Indebtedness or
obligation, or to maintain working capital or other balance sheet condition, or
otherwise to advance or make available funds for the purchase or payment of such
Indebtedness or obligation; (iii) to lease property or to purchase securities or
other property or services primarily for the purpose of assuring the owner of
such Indebtedness or obligation of the ability of the primary obligor to make
payment of the Indebtedness or obligation; or (iv) otherwise to assure the owner
of the Indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purposes of all computations made under this definition, a
Guaranty in respect of any Indebtedness for borrowed money shall be deemed to be
equal to the principal amount of such Indebtedness which has been guaranteed,
and a Guaranty in respect of any other obligation, liability, or dividend shall
be deemed to be equal to the maximum aggregate amount of such obligation,
liability or dividend.
"Holder" when used with respect to any Note means a Note Holder.
"Indebtedness" means, with respect to any Person at any date without
duplication, all items of indebtedness which, in accordance with generally
accepted accounting principles, would be included in determining total
liabilities as shown on the liabilities side of a balance sheet of such Person
at such date, and in addition shall include (i) Guaranties by such Person, (ii)
all Capitalized Lease Obligations of such Person, and (iii) all indebtedness
secured by any mortgage, lien, pledge, charge or encumbrance upon property owned
by such Person, whether or not the indebtedness so secured has been assumed by
such Person. For the purpose of computing the "Indebtedness" of any Person,
there shall be excluded (i) any particular Indebtedness to the extent that, upon
or prior to the maturity thereof, there shall have been deposited with the
proper depository in trust the necessary funds, securities, or evidences of such
Indebtedness, if permitted by the instrument creating such Indebtedness, for the
payment, redemption, or satisfaction of such Indebtedness; and thereafter such
funds and evidences of Indebtedness so deposited shall not be included in any
computation of the assets of such Person, and (ii) Indebtedness of a Restricted
Subsidiary of such Person, which is not guaranteed by such Person.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
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"Independent" when used with respect to any specified Person means such a
Person who (i) is in fact independent, (ii) does not have any direct financial
interest or any material indirect financial interest in the Company or in any
other obligor upon the Notes or in any Affiliate of the Company or of such other
obligor, and (iii) is not connected with the Company or such other obligor or
any Affiliate of the Company or of such other obligor, as an officer, employee,
promoter, organizer, underwriter, trustee, partner, director or Person
performing similar functions. Whenever it is herein provided that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such Person shall be appointed by a Company Order, and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning herein.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Inventory" means, with respect to any Person, all assets of such Person
classified as inventory on a Consolidated basis in accordance with GAAP
excluding all such assets of Restricted Subsidiaries of such Person.
"Issue Date" means with respect to any Note, the date on which the Note
is originally issued in accordance with the terms of this Indenture.
"Lien" means any mortgage, lien (statutory or other), pledge, security
interest, encumbrance, hypothecation, assignment for security or other security
agreement of any kind or nature whatsoever. For purposes of this Indenture, a
Person shall be deemed to own subject to a Lien any property which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capitalized Lease Obligation or other title
retention agreement relating to Indebtedness of such Person.
"Long-Term Debt" means, with respect to any Person and any date, all
Indebtedness classified as "long-term debt" in accordance with GAAP.
"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 thereof or by declaration of
acceleration, call for redemption or otherwise.
"Net Income" means, with respect to any Person for any period, the net
income or loss of such Person determined in accordance with GAAP.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, Chief Executive Officer, President, Executive Vice President or any Vice
President, and by the Treasurer, an Assistant Treasurer, Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Original Interest Accrual Date" means the date of a Note.
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"Opinion of Counsel" means a written opinion of counsel, who may be
(except as otherwise expressly provided in this Indenture) counsel for the
Company, and shall be acceptable to the Trustee.
"Outstanding," when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except: (i) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; (ii) Notes for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust or set aside and segregated in trust by the Company for
the Holders of such Notes, provided that if such Notes are to be redeemed notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; (iii) Notes in exchange for
or in lieu of which other Notes have been authenticated and delivered pursuant
to this Indenture; provided, however, that in determining whether the Note
Holders of the requisite principal amount of the Outstanding Notes have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to be
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
"Parity Debt" means any and all indebtedness of the Company created,
incurred, assumed, or guaranteed by the Company before, at, or after the date of
execution of the Indenture which (a) matures by its terms, or is renewable at
the option of the Company, to a date more than one year after the date of the
original creation, incurrence, assumption, or guaranty of such Indebtedness by
the Company, (b) contains covenants, conditions and restrictions on the Company
which are not inconsistent with nor violate any of the covenants, conditions and
restrictions in this Indenture, and (c) is neither Senior Debt nor Subordinated
Debt but in no event shall Parity Debt include deferred taxes. Parity debt shall
include the indebtedness evidenced by all outstanding Existing Notes.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Notes on behalf of the Company prior to the
occurrence of an Event of Default. Initially, and until authorization by the
Company, the Company shall not have a Paying Agent.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note. For purposes of this definition, any Note authenticated and
delivered under Section 306 in exchange for or in lieu of a
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mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date," for the interest payable on any Interest Payment
Date means the fifteenth day (whether or not a Business Day) of the calendar
month next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any executive vice president, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, or any other employee of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
person's knowledge of an familiarity with the particular subject.
"Restricted Subsidiary" and "Restricted Subsidiaries" have the meaning
specified in Section 1008.
"Senior Debt" means the principal of, premium (if any) and interest on
any and all Indebtedness of the Company (other than the Notes, Parity Debt and
Subordinated Debt) incurred in connection with the borrowing of money from or
guaranteed to banks, trust companies, insurance companies and other financial
institutions, including all Indebtedness to such institutions and
seller-financed land acquisitions to the extent it is secured by real estate
and/or assets of the Company, evidenced by bonds, debentures, mortgages, notes
or other securities or other instruments, incurred, assumed or guaranteed by the
Company before, at or after the date of execution of this Indenture, and all
renewals, extensions and refundings thereof; provided that any Indebtedness
shall not be Senior Debt if the instrument creating or evidencing any such
Indebtedness or pursuant to which such Indebtedness is outstanding, provides
that such Indebtedness, or such renewal, extension or refunding thereof, is
junior or is not superior in right of payment to the Notes.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Note or any installment
of interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and
payable.
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"Subordinated Debt" means any and all Indebtedness of the Company (but
not of any Subsidiary) created, incurred, assumed or guaranteed by the Company
before, at or after the date of execution of this Indenture which, by the terms
of the instrument (or any supplemental instrument) creating or evidencing such
Indebtedness or pursuant to which such Indebtedness is outstanding, (a) it is
provided that such Indebtedness, or any renewal, extension, or refunding
thereof, is expressly subordinate and inferior in right of payment to the Notes
(whether or not subordinated to any other Indebtedness or the Company) or (b) it
is not, by its terms, Senior Debt or Parity Debt. "Subordinated Debt" shall
include any Indebtedness of the Company to Affiliates of the Company and any
Indebtedness incurred by the Company under any agreement to redeem or repurchase
any securities of the Company.
"Subsidiary" means any corporation, more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other subsidiaries, or by the Company and one or more other
Subsidiaries. For the purpose of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors or trustees,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Transfer Agent" means the agent responsible for the transfer of
ownership of any Note. U.S. Bank National Association will serve as Transfer
Agent.
"Trust Estate" means all rights, interest and property which has been
collaterally assigned to the Trustee.
"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 applicable provisions of the Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Wholly-Owned" when used in connection with any Subsidiary, means a
Subsidiary of which all of the issued and outstanding shares of stock, except
shares required as directors' qualifying shares, are owned by the Company and/or
one or more of its Wholly-Owned Subsidiaries. For purposes of this definition,
"voting stock" shall have the same meaning as in the definition of Subsidiary.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee upon request 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 an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished. Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture shall include:
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(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. 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 prudence should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
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 prudence should know that the certificate or opinion or
representations with respect to such matters are erroneous.
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 be consolidated and form one
instrument.
SECTION 104. ACTS OF NOTE HOLDERS.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Note Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Note 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 hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
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sometimes referred to as the "Act" of the Note 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 (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(2) 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 such
person's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such person's authority. The fact and date of
the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(3) The ownership of Notes shall be proved by the Note
Register.
(4) Any request, demand, authorization, direction, notice,
consent, waiver or other 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 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Note Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, specified in the
first paragraph of this instrument, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO NOTE HOLDERS; WAIVER.
Where this Indenture or any Note provides for notice to Note Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder, or if the terms herein provide for notice to less than all Note
Holders, then to such Note Holders as to whom notice may be required to be sent,
at each such Holder's address as it appears on the Note Register, not later than
the latest date and not earlier than the earliest date prescribed for the giving
of such notice. In any case
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where notice to Note Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Note 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 Note 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.
In case 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, then
such notification as shall be made with the approval of the Trustee shall
constitute notification for every purpose hereunder.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, expressed or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Note Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of
Iowa, without giving effect to the
conflict of laws principles thereof.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Note shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Notes) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date, or at the Stated Maturity; provided that no interest
shall accrue for the period from and after any such Redemption Date or Stated
Maturity and,
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provided further, that no interest shall be paid for the period from and after
any such Interest Payment Date to the actual payment date until the next
succeeding Interest Payment Date.
SECTION 113. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the
Trust Indenture Act, the required provision shall control.
ARTICLE TWO
NOTE FORMS
SECTION 201. FORM GENERALLY.
The Notes and the certificate of authentication thereon shall be in
substantially the forms set forth in this Article, 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 shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
or market on which the Notes may be listed or included, all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
SECTION 202. FORM OF FACE OF NOTES.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY LEASING, INC.
6% Notes Due December 31, 2004
Registered No.: Registered
---------
Principal Amount:$
----------------
Original Interest Accrual CUSIP:
-----------
----------------
Date: January 1, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Leasing, Inc., an
Iowa corporation (herein
called 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
__________________________ Dollars ($ _______
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_______ ) on December 31, 2004, and to pay interest thereon from the Original
Interest Accrual Date set forth above at the rate of (six (6%)), until the
principal hereof is paid or made available for payment. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date,
as provided in such Indenture, will be paid to the Person in whose name this
Note (or one or more Predecessor) is registered (the "Holder") at the close of
business on the Regular Record Date for such interest, which shall be the
fifteenth day (whether or not a Business Day) of the calendar month next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Dates and may either be paid to the Person in whose name this
Note (or one or more Predecessor Notes) 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 whereof shall be given to Note Holders not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the applicable requirements of any
securities exchange or market on which the Notes may be listed or included,
and upon such notice as may be required by such exchange or market, all as
more fully provided in said Indenture. Payment of the principal of and
interest on this Note will be made at the office or agency maintained by the
Company for such purpose in Marion,
Iowa, or in such other office or agency as
may be selected by the Company in accordance with the Indenture, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, provided, however, that at the
option of the Company payment of interest may be made by United States dollar
check mailed to the address of the Person entitled thereto as such address
shall appear in the Note Register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be signed in its
name by the manual or facsimile signature of its President and attested by the
manual or facsimile signature of its Secretary.
Dated: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
-------------------------
COMPANY LEASING, INC.
By:
-----------------------------
President
Attest:
--------------------------------
Secretary
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[FORM OF CERTIFICATE OF AUTHENTICATION]
SECTION 203. FORM OF REVERSE SIDE OF NOTE.
This Note is one of a duly authorized issue of Notes of the Company
designated as its 6% Notes Due December 31, 2004 (the "Notes") in the maximum
aggregate principal amount of up to $1,984,680, issued and to be issued under an
Indenture, dated as of December 31, 2001 (the "Indenture"), between the Company
and U.S. Bank National Association as Trustee (the "Trustee"), which term
includes any successor Trustee under the Indenture. Reference is hereby made to
the Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the
Company, the Trustee and the Note Holders, and for a statement of the terms upon
which the Notes are, and are to be, authenticated and delivered. Capitalized and
certain other terms used herein and not otherwise defined have the meanings set
forth in the Indenture.
The Notes are general unsecured obligations of the Company. The payment
of the principal of and interest on this Note is expressly subordinated, as
provided in the Indenture, to the payment of all Senior Debt, as defined in the
Indenture, and, by the acceptance of this Note, the Holder hereof agrees,
expressly for the benefit of the present and future holders of Senior Debt, to
be bound by the provisions of the Indenture relating to such subordination and
authorizes and appoints as such Holder's attorney-in-fact the Trustee to take
such action on such Holder's behalf as may be necessary or appropriate to
effectuate such subordination.
The Company may, at its option, redeem the Notes at any time either in
whole or in part, from time to time, at the Redemption Price (expressed as a
percentage of the principal amount redeemed) set forth below plus interest
accrued to the Redemption Date. The Redemption Price for each
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Note (expressed as a percentage of the principal amount redeemed) shall be
100%.
In the event of redemption of this Note in part only, a new Note for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation of this Note.
Notice of redemption will be mailed to the Holder at least 30 days, but
not more than 60 days before the Redemption Date to each Holder at the
registered address thereof.
If this Note, or a portion hereof, shall be redeemed by call for
redemption or shall be accepted for repayment upon the death of the Holder, and
payment be duly provided therefor as specified in the Indenture, interest shall
cease to accrue on this Note or such portion hereof, as the case may be.
Interest installments whose Stated Maturity is on or before the
Redemption Date or Repayment Date will be payable to the Holders of such Notes,
or one or more of Predecessor 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 or repayment of this Note in part only, a
new Note or Notes for the unredeemed or unrepaid portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default as defined in the Indenture shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture. The Company shall pay
all costs of collection, whether or not judicial proceedings are instituted, in
the manner provided in the Indenture. The Indenture provides that such
declaration and its consequences may, in certain events, be annulled by the
Holders of a majority in principal amount of the Notes Outstanding.
If less than all of the Notes are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee in inverse order of maturity. If less
than all of the Notes within a particular maturity are to be redeemed, the
particular Notes to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Notes within the
maturity not previously called for redemption, either by lot or in any manner
deemed by the Trustee to be proper. In case there are outstanding Notes of a
denomination greater than $666, for the purpose of determining by lot the
portions of a Note to be redeemed, the Trustee may assign numbers to the units
of $666 represented by such Outstanding
-16-
Notes, or may draw by lot the portions of such Notes to be redeemed in such
other manner as it may determine.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Note Holders under the Indenture at any time by
the Company and the Trustee with the consent of the Note Holders of two-thirds
in aggregate principal amount of the Notes at the time Outstanding. The
Indenture also contains provisions permitting the Note Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Note Holders of all the Notes, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note shall be conclusive and binding upon such Holder and upon all
future Note Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture or amendment or modification hereof or thereof shall alter or
impair the obligation of the Company to pay the principal of and interest on
this Note at the times, place and rate and in the coin or currency herein
prescribed.
In the event of a consolidation or merger of the Company into, or of the
transfer of its assets substantially as an entirety to, a successor corporation
in accordance with the Indenture, such successor corporation shall assume
payment of the Notes and the performance of every covenant of the Indenture on
the part of the Company, and in the event of any such transfer, the predecessor
corporation shall be discharged from all obligations and covenants in respect of
the Notes and the Indenture and may be dissolved and liquidated, all as more
fully set forth in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and interest on this Note are
payable, duly endorsed by or accompanied by a written instrument of transfer
in the form printed on this Note or in another form satisfactory to the
Company and the Note Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
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The Notes are issuable only in registered form without coupons in
denominations of $666 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall be governed by and construed in accordance with the laws
of the State of
Iowa.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
SECTION 204. FORM OF CERTIFICATE OF AUTHENTICATION AND FORM OF ASSIGNMENT.
[Form of Certificate of Authentication]
This is one of the Notes referred to in the within-mentioned Indenture.
Dated:
----------------------
----------------------------------------
By
--------------------------------------
Authorized Signature
[Form of Assignment]
(To be executed by the registered holder if such holder desires to
transfer this Note)
-18-
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(Please print name and address of transferee)
this Note, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint ______________________, as Attorney, to
transfer the within Note on the books kept for registration thereof, with full
power of substitution.
Dated:
-----------------------
Signature:
--------------------------------------------------------------------
(Signature must conform in all respects
to name of holder as specified on the face
of the Note)
(Insert Social Security or Other Identifying Number
of Transferee):
-----------------------------------------------------
Signature Guaranteed:
---------------------------------------------------------
Signature must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee.
ARTICLE THREE
THE NOTES
SECTION 301. TITLE AND TERMS GENERALLY.
The Notes shall be known and designated as the 6% Notes Due December 31,
2004 of the Company. The maximum aggregate principal amount of Notes to be
authenticated and delivered under this Indenture is $1,984,680, excluding
accrued interest, except for Notes authenticated and delivered upon registration
of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to
Sections 304, 305, 306, 905 or 1108 hereof.
The Notes shall be dated as provided in section 303 hereof, shall bear
interest from the Original Interest Accrual Date of such Note, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, payable on the last day of each month, commencing on
the last day of the month of the Original Interest Accrual Date, until
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the principal thereof is paid or made available for payment, and shall mature
on December 31, 2004.
The Notes shall bear interest at 6% per annum.
The principal of and interest on Notes shall be payable at the office or
agency maintained by the Company in Marion,
Iowa, pursuant to Section 1002, for
such purpose.
The Notes shall be redeemable as provided in Article Eleven.
The Notes are unsecured obligations of the Company and shall be
subordinated in right of payment to Senior Debt of the Company as provided in
Article Twelve.
The Notes shall be equal in right of payment to certain Indebtedness of
the Company defined as Parity Debt.
The Notes shall be senior in right of payment to all Subordinated Debt.
The Notes are an obligation of the Company but not of any Affiliate.
SECTION 302. DENOMINATIONS.
The Notes shall be issuable only in registered form without coupons and
in denominations of $666 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its President or
any Vice President and attested by its Secretary or 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. The Trustee in accordance with such Company Order
shall authenticate and deliver such Notes as in this Indenture provided and not
otherwise.
Each Note shall be dated as of the date payment in good consideration for
such Note is delivered to the Company.
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
-20-
form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder
and is entitled to the benefits of the Indenture.
SECTION 304. 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 are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes, in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Company will cause definitive Notes to
be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at any office or agency of the Company
designated pursuant to Section 1002, 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 therefor a
like principal amount of definitive Notes of authorized denominations. Until so
exchanged the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or any other office
or agency pursuant to Section 1002 being herein sometimes referred to as the
"Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. The Company is hereby appointed "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of
any authorized denominations, of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive.
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 er or exchange.
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Every Note presented or surrendered for registration of transfer or for
exchange shall be duly endorsed for transfer (if so required by the Company or
the Trustee), or shall be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Note Registrar duly executed by the
Holder thereof or such Holder's 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
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304, 905 or 1108 not involving any transfer.
The Company shall not be required (i) to 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 a notice of redemption of Notes selected
for redemption pursuant to Section 1105 and ending at the close of business on
the day of such mailing or (ii) to register the transfer of or exchange any Note
so selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Note of like series, tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Note and (ii)
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Note has been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Note, a new Note of like series, tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or
is about to become due and payable, the Company in its discretion, may instead
of issuing a new Note, may pay such Note.
Upon the issuance of any new Note under this Section, 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 expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this section in lieu of any destroyed,
lost or stolen Note shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note which 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 (or one or more Predecessor Notes) is registered at the close
of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest shall be paid by the Company, at its election in each case, as provided
in paragraph (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business an 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 the date of the
proposed payment and, at the same time, the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at such Holder's address as it appears in the Note Register, not
less than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following
Paragraph (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange or market on which the Notes may be listed or included and, upon such
notice as may be required by such exchange or market if, after notice given by
the Company to the Trustee of the proposed
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payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
If any installment of interest whose Stated Maturity is on or prior to
the Redemption Date for any Notes called for redemption pursuant to Article
Eleven is not paid or duly provided for on or prior to the Redemption Date in
accordance with the foregoing provisions of this Section, such interest shall be
payable as part of the Redemption Price of such Notes.
Subject to the foregoing provisions of this Section, each Note delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Note shall carry the rights to interest accrued and unpaid and
to accrue which were carried by such other Note.
All payments of interest on the Notes to the person entitled thereto,
whether made by the Company, the Trustee or any Paying Agent, as authorized
pursuant to this Indenture, shall be made (subject to collection) by check
mailed to the address of the person entitled thereto as such address shall
appear on the Note Register, unless the Trustee determines such methods to be
inappropriate in the circumstances.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee, the Note Registrar 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 (subject
to Section 307) interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. CANCELLATION.
All Notes surrendered for payment, redemption, registration of transfer
or exchange if surrendered to any Person other than the Trustee, shall be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Notes held by the Trustee shall be disposed of and a
destruction certificate shall be delivered to the Company.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 311. AUTHENTICATION AND DELIVERY OF ORIGINAL ISSUE.
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Forthwith upon the execution and delivery of this Indenture, or from time
to time thereafter, Notes up to the aggregate principal amount of $1,984,680 may
be executed by the Company and delivered to the Trustee for authentication and
delivered by the Trustee upon Company Order, without any further action by the
Company.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(a) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in section 306 and (ii) Notes for whose payment
money has theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter paid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(b) all such Notes not theretofore delivered to the Trustee
for cancellation (i) have become due and payable, or (ii) will become due and
payable at their Stated Maturity within one year, or (iii) 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 this subsection (b)
(i), (ii) or (iii) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Notes not theretofore delivered
to the Trustee for cancellation, for principal and interest to the date of
such deposit (in the case of Notes which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company, including reasonable fees of the Trustee;
(3) the Company shall have delivered to the Trustee an Officer's
Certificate and an opinion of Counsel to the effect that such deposit does not
violate (a) the provisions of Article Twelve hereof or (b) any provisions of any
Senior Debt; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 shall survive, and,
if the money shall have been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
All money deposited with the Trustee pursuant to Section 401 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
as the Trustee may determine, to the Persons entitled thereto, of the principal
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any installment interest upon any
Note when it becomes due and payable and continuance of such default for a
period of ten (10) days (whether or not such payment is prohibited under the
provisions of Article Twelve); or
(2) default in the payment of the principal on any Note at its
Stated Maturity (whether or not such payment is prohibited under the provisions
of Article Twelve); or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with) and continuance of such default or breach for a period
of thirty (30) days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Note
Holders of at least twenty-five percent (25%) in principal amount of the
Outstanding Notes, a written notice (and the Trustee shall give such written
notice to the Company upon the request of the Note Holders of at least
twenty-five percent (25%) in principal amount of the Outstanding Notes)
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(4) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Subsidiary, under Federal
bankruptcy law, as now or hereafter constituted, or any other applicable Federal
or State bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any
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Subsidiary or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of sixty (60) consecutive
days;
(5) the commencement by the Company or any subsidiary of a
voluntary case under Federal bankruptcy law, as now or hereafter constituted, or
any other applicable Federal or State bankruptcy or insolvency, or other similar
law, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Federal bankruptcy law or any other
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Subsidiary or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company or Subsidiary in furtherance of any such action;
(6) the occurrence of any Event of Default under the indenture
governing the Existing Notes existing or occurring after January 1, 2002 unless
it is cured within ninety (90) days thereof; or
(7) the incurrence of any Senior Debt.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs, then and in every such case the Trustee or
the Note Holders of not less than twenty-five percent (25%) in principal amount
of the Outstanding Notes may, and the Trustee upon request of the Note Holders
of not less than twenty-five percent (25%) in principal amount of the
outstanding Notes shall, declare the principal of all the Notes to be due and
payable immediately, by notice in writing to the Company (and to the Trustee if
given by Note Holders), and upon any such declaration such entire principal
amount and all interest shall become immediately due and payable. Collection
actions or judicial proceedings may be commenced as set forth in Section 503.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Note Holders of a
majority in 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:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue installments of interest on all Notes,
(b) the principal of any Notes which have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Notes,
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(c) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the rate borne by the
Notes, and
(d) 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 the Holders and their agents and counsel if
such Holders have initiated action in accordance with this Section 502; and
(2) all Events of Default, other than the non-payment of the
principal of Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
In the case of a default in payment of principal of any Note, when and as
the same shall become due and payable, or in the case of a default in payment of
the interest on any Note, when and as the same shall become due and payable and
the continuance of such default for 10 days, the Trustee may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Note Holders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in and of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. 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 upon the Notes
or the property of the Company or of such other obligor, 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) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Note Holders allowed in such judicial proceeding, and
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(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Note
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 607 hereof.
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 thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 505. 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 shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Note
Holders of the Notes in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee or the Holders directly pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal 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 607
hereof, and the Trustee shall have a lien on all funds in its possession for the
payment of its fees and reimbursement of its expenses, including attorney fees;
SECOND: to the payment of the costs of collection, if any, advanced by
Note Holders;
THIRD: to the payment of principal and interest on the Notes, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Notes for principal and interest, respectively; and
FOURTH: to the payment of the remainder, if any, to the Company or any
other person lawfully entitled thereto.
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SECTION 507. LIMITATION ON SUITS.
Prior to the declaration of acceleration provided for in Section
502 hereof, no Holder of any 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 has previously given written notice to
the Trustee of the occurrence of an Event of Default;
(b) the Note Holders of greater than fifty percent (50%)
in 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 Note 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 thirty (30) days after its receipt
of such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such thirty (30) day period by the Note
Holders of a majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Note 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 Note
Holders, or to obtain or to seek to obtain priority or preference over any other
Note Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Note Holders.
SECTION 508. UNCONDITIONAL RIGHT OF NOTE HOLDERS TO RECEIVE PRINCIPAL
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Note shall have the right to receive payment of the principal of and (subject to
Section 307) interest on such Note on the Stated Maturity thereof (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. 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 shall have been
discontinued or abandoned for any reason or shall have 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
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Note Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Note Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Note Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Note Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Note Holders, as the
case may be.
SECTION 512. CONTROL BY NOTE HOLDERS.
The Holders of a majority in 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, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee shall have received satisfactory
indemnifications for all risk of loss and expense and shall have determined
that the requested action is not unduly prejudicial to the rights of the other
Note Holders.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Notes may on behalf of the Holders of all the Notes waive any
past default hereunder and its consequences, provided that a default in the
payment of the principal of or interest on any Note, or in respect of certain
other covenants or provisions hereof cannot be modified or amended except as set
forth in Section 902 hereof.
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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 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Note by such
Holder's acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant. The provisions
of this Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Note Holders, holding in the
aggregate more than ten percent (10%) in principal amount of the Outstanding
Notes, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Note on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(1) Except during the continuance of an Event of Default,
(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; and
(b) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture,
but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be
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under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(2) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(3) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that:
(a) this Subsection shall not be construed to limit the
effect of Subsection (1)(a) of this Section;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(c) 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 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
(d) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability not reasonably assured to it.
(4) 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.
SECTION 602. NOTICE OF DEFAULTS.
Within sixty (60) days after the occurrence of any default hereunder, the
Trustee shall transmit by mail to all Note Holders, as their names and addresses
appear in the Note Register, notice of such default hereunder known to a
Responsible Officer of Trustee, unless such default shall have been cured or
waived, provided that (i) except in the case of a default in the payment of the
principal of or interest on any Note, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Note Holders, and (ii) in the case of any default of the
character specified in Section 501(3), no such notice to Note Holders shall be
given until at least thirty (30) days after the occurrence thereof. For the
purpose of this Section, the term "default"
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means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in section 601:
(1) 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, debenture,
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;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the board of directors of the Company may be sufficiently
evidenced by a Company Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel (who may be counsel
to the Company) and the advice of such counsel or any opinion of Counsel shall
be full and complete authorization and protection in respect to any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Note Holders pursuant to this Indenture, unless such
Note Holders shall have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction; and
(6) prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or document
unless requested to do so by the Holders of not less than a majority in
aggregate principal amount of the Notes then outstanding, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, provided that if the payment within a
reasonable time to the Trustee of the costs, expenses and liabilities likely to
be incurred in the making of such investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding.
(7) the Trustee shall have no duty to inquire as to the,
performance of the Company's covenants in Article Ten hereof. In addition, the
Trustee shall not be deemed to
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have knowledge of any Default or Event of Default, except any Default or Event
of Default of which the Trustee shall have received written notification or
obtained actual knowledge.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTE.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations 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 605. TRUSTEE MAY HOLD NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any 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, subject to section 612,
may otherwise deal with the Company with the same rights it would have it if
were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such
other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) 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);
(2) except as otherwise expressly provided for 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 negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith 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.
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As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Notes upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of or interest on Notes.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(1) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section 608, then, within ninety (90) days after
ascertaining that it has such conflicting interest, and if the default (as
defined in Section 608(3)) to which such conflicting interest relates has not
been cured or duly waived or otherwise eliminated before the end of such ninety
(90) day period, the Trustee shall either eliminate such conflicting interest
or resign in the manner and with the effect hereinafter specified in this
Article.
(2) In the event that the Trustee shall fail to comply with
the provisions of Subsection (1) of this Section, within ten (10) days after
the expiration of such ninety (90) day period, the Trustee shall transmit by
mail to all Note Holders, as their names and addresses appear in the Note
Register, notice of such failure.
(3) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest if the Notes are in default (as defined
herein, but exclusive of any period of grace or requirement of notice) and:
(a) the Trustee is trustee under another indenture
under which any other securities, or certificates of interest or participation
in any other securities, of the Company are outstanding, unless such other
indenture is a collateral trust indenture under which the only collateral
consists of Notes issued under this Indenture, provided that there shall be
excluded from the operation of this paragraph that certain indenture between
the Trustee and the Company dated June 11, 1996, and any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding,
(i) this Indenture and such other indenture or
indentures are wholly unsecured and rank equally and such other indenture or
indentures are specifically described herein or are hereafter qualified under
the Trust Indenture Act, unless the Commission shall have found and declared by
order pursuant to Section 306(b) or Section 307(1) of the Trust Indenture Act
that differences exist between the provisions of this Indenture and the
provisions of such other indenture or indentures which are so likely to involve
a material conflict of interest as to make it necessary in the public interest
or for the protection of investors to disqualify the Trustee from acting as
such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden
of proving, on application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture and such other indenture or
indentures is not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
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(c) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or Indirect common
control with an underwriter for the Company;
(d) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or representative
of the Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except that
(i) one individual may be a director or an executive officer, or both, of the
Trustee and a director or an executive officer, or both, of the Company but may
not be at the same time an executive officer of both the Trustee and the
Company; (ii) if and so long as the number of directors of the Trustee in
office is more than nine, one additional individual may be a director or an
executive officer, or both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by any underwriter for
the Company to act in the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent or depositary, or in any other similar
capacity or, subject to the provisions of paragraph (a) of this Subsection, to
act as trustee, whether under an indenture or otherwise;
(e) ten percent (10%) or more of the voting securities
of the Trustee is beneficially owned either by the Company or by any director
or executive officer thereof, or twenty percent (20%) or more of such voting
securities is beneficially owned, collectively, by any two or more of such
persons; or ten percent (10%) or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer of any such underwriter, or is
beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter in
this Subsection defined), (i) five percent (5%) or more of the voting
securities, or ten percent (10%) or more of any other class of security of the
Company not including the Notes issued under this Indenture and securities
issued under any other indenture under which the Trustee is also trustee, or
(ii) ten percent (10%) or more of any class to security of an underwriter for
the Company;
(g) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter in
this Subsection defined), five percent (5%) or more of the voting securities of
any person who, to the knowledge of the Trustee, owns ten percent (10%) or more
of the voting securities of, or controls directly or indirectly or is under
direct or indirect common control with the Company;
(h) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter in
this Subsection defined), ten percent (10%) or more of a class of security of
any person who, to the knowledge of the Trustee, owns fifty percent (50%) or
more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the
Notes or on any anniversary of such default while the default upon the Notes
remains outstanding, in the capacity of executor, administrator, testamentary
or inter vivos trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of twenty-five percent (25%) or more of the
voting securities, or of any class of security, of any person, the beneficial
ownership of a
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specified percentage of which would have constituted a conflicting interest
under paragraph (f), (g) or (h) of this Subsection. As to any such securities
of which the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply, for a period of two years
from the date of such acquisition, to the extent that such securities included
in such estate do not exceed twenty-five percent (25%) of such voting
securities or twenty-five percent (25%) of any such class of security. Promptly
after the date of any such default and annually each succeeding year that the
Notes remain in default, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such dates. If the
Company fails to make payment in full of the principal of or interest on any of
the Notes when and as the same becomes due and payable, and such failure
continues for thirty (30) days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such thirty (30) day period, and
after such date, notwithstanding the foregoing provisions of this paragraph,
all such securities so held by the Trustee, with sole or joint control over
such securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (f), (g) and (h) of this subsection; or
(j) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture
Act, the Trustee shall be or become a creditor of the Company.
The specification of percentages in paragraphs (e) to (i) inclusive, of
this Subsection shall not be construed as indicating that the ownership of such
percentage of the securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of paragraph (c) or (g)
of this Subsection.
For the purposes of paragraphs (f), (g) , (h) and (i) of this Subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence to indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(4) For the purposes of this Section:
(a) The term "underwriter," when used with reference to
the Company means every person who, within one year prior to the time as of
which the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has participated or
has had a direct or indirect participation in any such undertaking, or has
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participated or has had a participation in the direct or indirect underwriting
of any such undertaking, but such term shall not include a person whose
interest was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers' commission.
(b) The term "director" means any director of a
corporation or any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(c) The term "person" means an individual, a
corporation, a partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision thereof.
As used in this paragraph, the term "trust" shall include only a trust where
the interest or interests of the beneficiary or beneficiaries are evidenced by
a security.
(d) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or pursuant
to any trust, agreement or arrangement whereby a trustee or trustees or agent
or agents for the owner or holder of such security are presently entitled to
vote in the direction or management of the affairs of a person.
(e) The term "Company" means any obligor upon the Notes.
(f) The term "executive officer" means the president,
vice president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing similar
functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of directors.
(g) The term "default" shall mean an Event of Default
or an event which with notice or passage of time, or both, would constitute an
Event of Default.
(5) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(a) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this Section (each
of whom is referred to as a "person" in this paragraph) means such amount of
the outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes which
the holders of all the outstanding voting securities of such person are
entitled to cast in the direction or management of the affairs of such person.
(b) A specified percentage of a class of securities of
a person means such percentage of the aggregate amount of securities of the
class outstanding.
(c) The term "amount," when used in regard to
securities, means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares and the number
of units if relating to any other kind of security.
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(d) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition;
(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as to principal
or interest or otherwise;
(iii) securities pledged by the issuer thereof
as security for an obligation of the issuer not in default as to principal or
interest or otherwise; and
(iv) securities held in escrow if placed in
escrow by the issuer thereof, provided, that any voting securities of an issuer
shall be deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(e) A security shall be deemed to be of the same class
as another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges, provided, that, in the
case of secured evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity dates of
various series thereof shall not be deemed sufficient to constitute such series
different classes and provided, further, that, in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.
SECTION 609. TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall (a) be a
corporation or trust company organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, and (b) have a
combined capital and surplus of at least $10,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
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(2) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within thirty (30) days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor Trustee.
(3) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Notes, delivered
to the Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within thirty
(30) days after the giving of such notice of removal, the Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(4) If at any time:
(a) the Trustee shall fail to comply with Section
608(1) after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Note for at least six (6) months, or
(b) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for at least
six (6) months, or
(c) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i) the
Company by a Company Resolution may remove the Trustee, or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of a Note for at least
six (6) months, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Company Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Note Holders of a majority in 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 the Note Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide holder of a
Note for at least six (6) months, on behalf of himself and all others similarly
situated, may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(6) 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
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event by first-class mail, postage prepaid, to all Note 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 its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee, upon payment of its charges, shall
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 607. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such Successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the 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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper 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 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(1) Subject to subsection (2) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three (3) months prior to a default, as
defined in Subsection (3) of this Section, or subsequent to such a default,
then, unless and until such default shall be cured, the Trustee shall set apart
and hold in a special account for the benefit of the Trustee individually, the
Holders of the Notes and the holders of other indenture securities, as defined
in Subsection (3) of this Section:
(a) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three (3) month period and valid
as against the Company and its other
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creditors, except any such reduction resulting from the receipt or disposition
of any property described in paragraph (2) of this Subsection, or from the
exercise of any right of set off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon the date of
such default; and
(b) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in satisfaction or
composition thereof or otherwise, after the beginning of such three (3) month
period, or an amount equal to the proceeds of any such property if disposed of,
subject, however, to the rights, if any, of the Company and its other creditors
in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(i) to retain for its own account (A) payments
made on account of any such claim by any Person (other than the Company) who is
liable thereon, (B) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (C) distributions made in cash, securities or
other property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law;
(ii) to realize for its own account upon any
property held by it as security for any such claim, if such property was held
prior to the beginning of such three (3) month period;
(iii) to realize for its own account but only to
the extent of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the beginning of
such three (3) month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain the
burden of proving that at the time such property was so received the Trustee had
no reasonable cause to believe that a default, as defined in Subsection (3) of
this Section, would occur within three (3) months; or
(iv) to receive payment on any claim referred
to in paragraph (ii) or (iii), against the release of any property held as
security for such claim as provided in paragraph (ii) or (iii), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (ii), (iii) and (iv), property substituted
after the beginning of such three (3) month period for property held as security
at the time of such substitution, to the extent of the fair value of the
property released, shall have the same status as the property released and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property held
in such special account and the proceeds thereof shall be apportioned among the
Trustee, the Note Holders and the holders of other indenture securities in such
manner that the Trustee, the Note Holders and
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the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the Note Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceeding for reorganization is
pending shall have jurisdiction (i) to apportion among the Trustee, the Note
Holders and the holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Note Holders and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of
such three (3) month period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three (3)
month period, it shall be subject to the provisions of this Subsection if and
only if the following conditions exist: (i) the receipt of property or reduction
of claim, which would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning of such three (3)
month period; and (ii) such receipt of property or reduction of claim occurred
within three (3) months after such resignation or removal.
(2) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(a) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(b) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture for the purpose of
preserving any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or
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encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Note Holders at the time and in
the manner provided in this Indenture;
(c) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or other
similar capacity;
(d) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (3) of this
Section;
(e) the ownership of stock or other securities of a
corporation organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of the
Company; and
(f) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper, as defined in
Subsection (3) of this Section.
(3) For the purposes of this Section only:
(a) the term "default" means any failure to make
payment in full of the principal of or interest on any of the Notes or upon the
other indenture securities when and as such principal or interest become due
and payable;
(b) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section, and (iii)
under which a default exists at the time of the apportionment of the funds and
property held in such special account;
(c) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made within seven (7)
days after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(d) the term "self-liquidating paper" means any draft,
▇▇▇▇ of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, ▇▇▇▇ of exchange,
acceptance or obligation;
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(e) the term "Company" means any obligor upon the Notes;
and
(f) the term "Federal Bankruptcy Act" means the Bankruptcy
Act or Title 11 of the United States Code.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Notes remain outstanding, 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 original issuance,
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 307, and 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 at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $10,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or examining authority, for
the purposes of this section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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 the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, 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 Note Holders as
their names and addresses appear in the Note Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
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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.
No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in lieu of the form of certificate of authentication set forth
in Section 204, a certificate of authentication in the following form:
"This is one of the Notes described in the within mentioned Indenture."
, As Trustee
---------------------------
By:
-----------------------------------
As Authenticating Agent
By:
-----------------------------------
Authorized Signature
ARTICLE SEVEN
NOTE HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF NOTE
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(1) quarterly, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Note Holders as of such
Regular Record Date, and
(2) at such other times as the Trustee may request in
writing, within thirty (30) days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than fifteen
(15) days prior to the time such list is furnished provided, however, that
such list need not be furnished if the Trustee is the Note Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTE
HOLDERS.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Note Holders contained in
the most recent list furnished to the Trustee as provided in Section 701. The
Trustee may destroy any list furnished to it as provided in section 701 upon
receipt of a new list so furnished.
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(2) If three or more Note Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six (6) months preceding the date of such application, and such
application states that the applicants desire to communicate with other Note
Holders with respect to their rights under this Indenture or under the Notes
and is accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election, either
(a) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(1), or
(b) inform such applicants as to the approximate number of
Note Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(1) and as to the approximate cost of mailing to such Note
Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 702(1) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five (5) days after such tender the Trustee shall mail to
such applicants and file with the commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Note
Holders or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed and, on
notice to the Trustee, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Note
Holders with reasonable promptness after the entry of such order and the renewal
of such applicants respecting their applications.
(3) Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Note Holders in accordance with Section 702(2), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(2) .
SECTION 703. REPORTS BY THE COMPANY.
The Company shall:
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(1) File with the Trustee, within fifteen (15) days after the
Company is required to file the same with the Commission or to mail the same
to its shareholders, copies of the quarterly reports, annual reports and the
information, documents and other reports (or copies of such portions of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 12 or 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), or to mail to its shareholders pursuant
to Section 14(a) thereof.
(2) File with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations.
(3) Within fifteen (15) days after the date on which the
Company is required to file reports with the Commission under the 1934 Act, or
within fifteen (15) days after such date would have occurred had the Company
been required to file reports under the 1934 Act, the Company shall transmit
copies of such reports by mail to all Note Holders, as their names and
addresses appear on the Note Register, without cost to such Note Holders.
(4) Transmit by mail to all Note Holders, as their names and
addresses appear in the Note Register, within thirty (30) days after the
filing thereof with the Trustee (unless some other time shall be fixed by the
Commission) (a) any annual report filed with the Trustee pursuant to paragraph
(1) of this Section; (b) summaries, including a balance sheet and income
statement, of the quarterly reports filed with the Trustee pursuant to
paragraph (1) of this Section, provided, however, that, if requested by a Note
Holder, the Company shall transmit to such Note Holder, within fifteen (15)
days after such request, a copy of the Company's quarterly report as filed
with the Commission, and (c) any other information, documents or reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
(5) File with the Trustee within forty-five (45) days after
the end of each of the Company's fiscal quarters a certificate of the Chief
Executive Officer and the Controller of the Company stating that the Company
is in compliance with Article Ten, setting forth the calculations supporting
such certification, where applicable, and attaching the unaudited financial
statements of the Company, and file a supplemental certificate to the same
effect attaching the audited financial statements of the Company promptly
after such statements become available.
(6) File with the Trustee, within ninety (90) days after the
end of each fiscal year of the Company ending after the date hereof, a
certificate of the Chief Executive Officer and controller of the Company as to
such person's knowledge of the Company's compliance with all conditions and
covenants under this Indenture, such compliance to be determined without
regard to any period of grace requirement of notice provided under this
Indenture.
(7) Within one business day after payment of principal and/or
interest, the Company shall provide the Trustee with written notice of the
amount of principal and/or interest paid and the date of such payment.
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SECTION 704. REPORTS BY TRUSTEE.
(1) Within sixty (60) days of May 15 each year commencing
with the year 2002, the Trustee shall transmit by mail to all Note Holders, as
hereafter provided for, a brief report with respect to the following, provided
that no report need be transmitted if no event requiring to be disclosed in
the report has occurred:
(a) any change to its eligibility under Section 609 and its
qualifications under Section 603, or in lieu thereof, if to the best of its
knowledge it has continued to be eligible and qualified under said Section, a
written statement to such effect;
(b) the creation of or any material change to a
relationship specified in paragraphs (e) through (f) of subsection (3) of
Section 608;
(c) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Notes, on the trust estate or any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required (but
may elect) to report such advances if the unpaid aggregate of such advances does
not exceed one-half (1/2) of one percent (1%) of the principal amount of the
Notes Outstanding on the date of such report;
(d) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the Notes)
to the Trustee in its corporate capacity, on the date of such report, with a
brief description of any property held as collateral security therefor, except
an indebtedness based upon a creditor relationship arising in any manner
described in Section 613(2)(b), (c), (d) or (f);
(e) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of such report;
(f) any additional issue of Notes which the Trustee has not
previously reported; and
(g) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and which in its
opinion materially affects the Notes, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance with
Section 602.
(2) The Trustee shall transmit by mail to all Note Holders,
as their names and addresses appear in the Note Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (1) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Notes, on property or funds held or collected by it as
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Trustee and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate ten percent
(10%) or less of the principal amount of the Notes outstanding at such time,
such report to be transmitted within ninety (90) days after such time.
(3) Reports pursuant to this Section 704 shall be transmitted
by mail to all Note Holders, as the names and addresses of such Note Holders
appear upon the Note Register.
(4) A copy of each such report, at the time of such
transmission to Note Holders, shall be filed by the Trustee with each stock
exchange or market upon which the Notes are listed, with the Commission and
with the Company. The Company will notify the Trustee when the Notes are
listed on any stock exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or any Subsidiary or convey, transfer or lease its
properties and assets substantially as an entirety to the Company or any
Subsidiary, unless:
(1) in case the Company shall consolidate with or merge into
another corporation, trust or entity, the Person formed by such consolidation
or into which the Company is merged shall be a trust, corporation or other
entity organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee and counsel to the Trustee, the due and
punctual payment of the principal of and interest on all the Notes and the
performance of every covenant of this Indenture on the part of the Company to
be performed or observed;
(2) immediately after giving effect to such transaction, and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, with the passage of time or the giving of notice,
would become an Event of Default, shall have occurred and be continuing;
(3) the Company, or the surviving entity, as the case may be,
immediately before and immediately after giving effect to such transaction or
series of transactions (including, without limitation, any Indebtedness
incurred or anticipated to be incurred in connection with or in respect of
such transaction or series of transactions) shall have a Consolidated Tangible
Net Worth equal to or greater than the Consolidated Tangible Net Worth of the
Company immediately prior to the transaction; and
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(4) 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 and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger of the Company with or into any other
corporation, trust or other entity in accordance with Section 801, the successor
Person 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 Person had been named
as the Company herein, and thereafter the predecessor Person shall be relieved
of all obligations and covenants under this Indenture and the Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTE HOLDERS.
Without the consent of any Note Holders, the Company, when authorized by
a Company Resolution, and the Trustee, at any time and from time to time may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee for any of the following purposes:
(1) to evidence the succession of another trust, corporation
or other entity to the Company and the assumption by any such successor of the
covenants of the Company herein as set forth in Section 801 and in the Notes;
or
(2) to add to the covenants of the Company for the benefit of
the Note Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for acceptance of appointment of
a successor trustee; or
(4) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided that such action pursuant to this paragraph (5) shall
not adversely affect the interests of the Note Holders.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTE HOLDERS.
With the consent of the Holders of not less than sixty-six and two-thirds
percent (66 2/3%) aggregate principal amount of the outstanding Notes, by Act of
such Note Holders delivered to the Company and the Trustee, the Company, when
authorized by a Company Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Note Holders under this Indenture,
provided that without the consent of the Holder of each Outstanding Note
affected thereby, no such supplemental indenture shall,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount thereof
or the rate of interest thereon, or change the place of payment where, or the
coin or currency in which, any Note or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentages in principal amount of the
Outstanding Notes, the consent of whose Note Holders is required for any such
supplemental indenture, or the consent of whose Note Holders is required for
any waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513, or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Note affected thereby, or
(4) modify any of the provisions of this Indenture relating
to the subordination of the Notes in a manner adverse to the Note Holders.
It shall not be necessary for any Act of Note Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) 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
(except to the extent required in the case of a supplemental indenture entered
into under Section 901(4)) be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, 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 905. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article 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 the 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
Outstanding Notes.
SECTION 906. EFFECT ON SENIOR DEBT.
No supplemental indenture shall adversely affect the rights of any holder
of Senior Debt under Article Twelve without the consent of such holder.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of, and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in Marion,
Iowa, an office or agency where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location and any change in the location, of such office or agency. Until
otherwise designated by the Company in a written notice to the Trustee, and if
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations, provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or
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agency in Marion,
Iowa, for such purposes. 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 1003. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
Whenever the Company shall have one or more Paying Agents, on or prior to
each due date of the principal of or interest on any Notes, it will deposit with
a Paying Agent a sum sufficient to pay the principal or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or 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, that
such Paying Agent will;
(1) hold all sums held by it for the payment of the principal
of or interest on 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;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of principal or
interest on the Notes; and
(3) 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.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent. Upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Unless otherwise required by applicable law, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of or interest on any Note and remaining unclaimed for
two years after such principal or interest has become due and payable shall be
paid to the Company, or (if then held by the Company) shall be discharged from
such trust. The holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease, provided that the
Trustee or such Paying Agent, before being required to make any such repayment,
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 Marion,
Iowa, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
thirty (30) days
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from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. MAINTENANCE OF CORPORATE EXISTENCE, LICENSING AND RIGHTS.
Subject to Article Eight hereof, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect the corporate
existence of the Company and each Subsidiary, and all material rights,
certificates, authorities, licenses, permits and approvals of any of them, and
shall conduct its business in conformity with the requirements of such rights,
certificates, authorities, licenses, permits and approvals provided that the
Company shall not be required to preserve any such right, certificate,
authority, license or permit if the Board of Directors of the Company shall
reasonably and in good faith determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company or of its
Subsidiaries and that the loss thereof is not disadvantageous in any material
respect to the Note Holders.
SECTION 1005. PAYMENT OF TAXES AND ASSESSMENTS.
The Company and each of its Subsidiaries will cause to be paid and
discharged all lawful taxes, assessments and governmental charges or levies
imposed upon the Company or any Subsidiary or upon the income or profits of the
Company or any Subsidiary or upon property or any part thereof belonging to the
Company or any Subsidiary before the same shall be in default, as well as all
lawful claims for labor, materials and supplies which, if unpaid, might become a
lien or charge upon such property or any part thereof, provided that the Company
shall not be required to cause to be paid or discharged any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and for which
disputed amounts adequate reserves (in the good faith judgment of the Board of
Directors of the Company) have been established.
SECTION 1006. MAINTENANCE OF PROPERTIES, INSURANCE; BOOKS AND RECORDS;
COMPLIANCE WITH LAW.
(1) The Company and each of its Subsidiaries shall maintain
insurance in such amounts and covering such risks as are usually and
customarily carried with respect to similar facilities according to their
respective locations.
(2) The Company and each of its Subsidiaries shall cause all
its properties (including leased properties) used or useful in the conduct of
its 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 may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this subsection (2)
shall prevent the Company or any Subsidiary from discontinuing the operation
and maintenance of any of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Note Holders.
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(3) The Company and each of its Subsidiaries shall keep
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Company
and each Subsidiary, in accordance with GAAP consistently applied to the
Company and its Subsidiary taken as a whole.
(4) The Company and each of its Subsidiaries shall comply
with all statutes, laws, ordinances, or government rules and regulations,
including rules, regulations and orders of governmental agencies, decrees,
orders, injunctions, writs to which it is subject, noncompliance with which
would adversely affect the business, prospects, earnings, properties, assets
or condition (financial or otherwise) of the Company and its Subsidiary taken
as a whole.
SECTION 1007. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit, cause or suffer any
Subsidiary of the Company to conduct any business or enter into any transaction
or series of transactions with or for the benefit of any Affiliate or any
Subsidiary of the Company, or any holder of five percent (5%) or more of any
class of capital stock of the Company (each an "Affiliate Transaction"), except
in good faith and on terms that are, in the aggregate, no less favorable to the
Company or such Subsidiary, as the case may be, than those that could have been
obtained in a comparable transaction on an arm's-length basis from a Person not
an Affiliate of the Company or such Subsidiary.
SECTION 1008. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING A SUBSIDIARY/RESTRICTED SUBSIDIARY.
If the Company or any Subsidiary of the Company, directly or indirectly,
creates or otherwise causes or suffers to exist or become effective or enters
into any agreement with any person that would cause or create any encumbrance or
restriction of any kind on the ability of any Subsidiary of the Company to (a)
pay dividends, in cash or otherwise, or make any other distributions on its
capital stock or any other interest or participation in, or measured by, its
profits owned by the Company or a Subsidiary of the Company, (b) make any loans
or advances to, or pay any Indebtedness owed to, the Company, or any Subsidiary
of the Company or (c) transfer any of its properties or assets to the Company to
any Subsidiary of the Company, except, in each case, for such encumbrances or
restrictions existing under or contemplated by or by reason of (i) the Notes or
this Indenture, (ii) any restrictions existing under agreements in effect on the
Issue Date, and (iii) any restrictions existing under any agreement that
refinances or replaces an agreement containing a restriction permitted by clause
(i) or (ii) above, provided that the terms and conditions of such restrictions
are not materially less favorable in the aggregate to the Note Holders than
those under or pursuant to the agreement being replaced or the agreement
evidencing the Indebtedness being refinanced or replaced, such affected
Subsidiary shall be deemed a "Restricted Subsidiary" for purposes of this
Agreement.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with the
covenants set forth in Section 1004 through 1008, inclusive, if before the time
for such compliance the Note Holders of at least two-thirds (2/3) in aggregate
principal amount of the Outstanding Notes shall, by Act of
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such Note Holders, either waive such compliance in such instance or generally
waive compliance with such covenants, but no such waiver shall extend to or
affect such covenant except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of such covenant shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. OPTIONAL REDEMPTION.
The Company may, at its option redeem the Notes either in whole or in
part, from time to time, at the Redemption Price (expressed as a percentage of
the principal amount redeemed) set forth below plus interest accrued to the
Redemption Date. The Redemption Price for each Note (expressed as a percentage
of the principal amount redeemed) shall be 100%.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, or any supplement
hereto shall be made in accordance with such provisions and this Article,
provided that no Redemption shall be made under this Article during any period
in which an Event of Default, or an event which, with notice or lapse of time or
both, would constitute an Event of Default, has occurred and is continuing.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to Section 1101
shall be evidenced by a Company Resolution. In case of any redemption at the
election of the Company of less than all the Notes, at least sixty (60) days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), the Company shall notify the Trustee of such
Redemption Date and of the aggregate principal amount of Notes to be redeemed
and shall deliver to the Trustee such documentation and records as shall enable
the Trustee to select the Notes to be redeemed pursuant to Section 1104.
SECTION 1104. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all the Notes are to be redeemed, the Notes to be redeemed
shall be selected by the Trustee in inverse order of maturity. If less than all
of the Notes within a particular maturity are to be redeemed, the particular
Notes to be redeemed shall be selected not more than sixty (60) days prior to
the Redemption Date by the Trustee, from the Outstanding Notes within a maturity
not previously called for redemption, by lot or in any manner deemed by the
Trustee to be proper. In case there are Outstanding Notes of a denomination
greater than $666, for the purpose of determining by lot the portions of Notes
to be redeemed, the Trustee may assign numbers to the units of $666 represented
by such Outstanding Notes, or may draw by lot the portions of such Notes to be
redeemed in such other manner as it may determine. The Trustee shall promptly
notify the Company in writing of the distinctive numbers of the Notes
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which, or portions of which, have been selected for redemption, and the
principal amount thereof to be redeemed in the case of Notes of a denomination
greater than $666.
The Trustee shall promptly notify the Company and any Note Registrar
(other than the Company) 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.
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 Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Note which has been or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than thirty (30) nor more than sixty (60) days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at the address
appearing in the Note Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) 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,
(4) 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 said date, and
(5) 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, upon Company Request, by the Trustee
in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent in immediately available funds an amount of money
sufficient to pay the Redemption Price of all the Notes which are to be redeemed
on that date.
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SECTION 1107. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall become, on the Redemption Date, due and payable at the Redemption
Price therein specified, and on 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 said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date,
exclusive of installments of interest whose stated maturity is on or prior to
the Redemption Date, which shall be payable to the Note Holders of such Notes,
or one or more Predecessor Notes, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
307.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Note.
SECTION 1108. NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall he surrendered at an
office or agency of the Company designated for that purpose pursuant to Section
1002 (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 such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note with service charge, a new
Note or Notes, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Note so surrendered.
ARTICLE TWELVE
SUBORDINATION OF NOTES
SECTION 1201. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each Holder of Notes by such
Holder's acceptance thereof (whether upon original issue or upon transfer or
assignment) likewise covenants and agrees, that the indebtedness represented by
the Notes and the payment of the principal of and interest on each and all of
the Notes is hereby expressly subordinated, and junior to the extent and in the
manner hereinafter set forth, in right of payment to the prior payment in full
of all Senior Debt.
SECTION 1202. DISTRIBUTION OF ASSETS, ETC.
Upon any distribution of assets of the Company upon any dissolution,
winding-up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other
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marshaling of the assets and liabilities of the Company or upon any acceleration
or maturity of the Notes or otherwise:
(1) the holders of all Senior Debt shall first be entitled to
receive payment in full of the principal thereof and interest due thereon, or
adequate provisions shall be made for such payment, before the Note Holders
are entitled to receive any payment on account of the principal of or interest
on the Indebtedness evidenced by the Notes; and
(2) any payment by, or distribution of assets of, the Company
of any kind or character, whether in cash, property or securities, to which
the Note Holders or the Trustee would be entitled except for the provisions of
this Article Twelve shall be paid or delivered by the person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Debt which
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account to the Senior Debt held or represented by each, to the
extent necessary to make payment in full of all Senior Debt remaining unpaid
after giving effect to any concurrent payment or distribution (or provision
therefore) to the holders of such Senior Debt.
SECTION 1203. NO PAYMENT TO NOTE HOLDERS IF SENIOR DEBT IS IN DEFAULT.
(1) Upon the maturity of any Senior Debt by lapse of time,
acceleration or otherwise, all principal thereof and interest due thereon
shall first be paid in full, or such payment duly provided for in cash or in a
manner satisfactory to the holder or holders of such Senior Debt before any
payment is made on account of the principal of or interest on the Notes or to
acquire any of the Notes.
(2) Upon the happening of an event of default with respect to
any Senior Debt, as such event of default is defined therein or in the
instrument under which it is outstanding, permitting the holders to accelerate
the maturity thereof, and, if the default is other than default in payment of
the principal of or interest on such Senior Debt, upon written notice thereof
given to the Company and the Trustee by the holder or holders of such Senior
Debt or their representative or representatives, then, unless and until such
event of default shall have been cured or waived or shall have ceased to
exist, no payment shall be made by the Company with respect to the principal
or interest on the Notes or to acquire any of the Notes.
SECTION 1204. SUBROGATION.
Subject to the payment in full of all Senior Debt, the Holders of the
Notes shall be subrogated to the rights of the holders of Senior Debt to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Debt until all amounts owing on the Notes shall be paid
in full, and, as between the Company, its creditors other than holders of Senior
Debt, and the Note Holders, no such payment or distribution made to the holders
of Senior Debt by virtue of this Article Twelve which otherwise would have been
made to the Holders of the Notes shall be deemed to be a payment by the Company
on account of the Senior Debt, it being understood that the provisions of this
Article Twelve are and are intended solely for the purpose of defining the
relative rights of the Holders of the Notes, on the one hand, and the holders of
Senior Debt, on the other hand.
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SECTION 1205. OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article Twelve or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Debt, and the Holders of the Notes,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders of the Notes the principal of and interest on the Notes as and when
the same shall become due and payable in accordance with their terms, or affect
the relative rights of the Holders of the Notes and creditors of the Company
other than the holders of Senior Debt, nor shall anything herein or exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Twelve to the
holders of Senior Debt in respect of cash, property or securities of the Company
received upon the exercises of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article Twelve, the Trustee and the Note Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any such dissolution, winding-up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
liquidating trustee or agent or other person making any payment or distribution
to the Trustee or to the Note Holders for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve.
SECTION 1206. PAYMENTS ON NOTES PERMITTED.
Nothing contained in this Article Twelve or elsewhere in this Indenture,
or in any of the Notes, shall (a) affect the obligation of the Company to make,
or prevent the Company from making, at any time except during the pendency of
any dissolution, winding-up, liquidation or reorganization proceeding, and
except during the continuance of any event of default specified in Section 1203
(not cured or waived), payments at the Stated Maturity of principal of or
interest on the Notes, or (b) prevent the application by the Trustee or any
Paying Agent of any moneys held by the Trustee or such Paying Agent, in trust
for the benefit of the Note Holders of Notes as to which notice of redemption
shall have been mailed or published at least once prior to the happening of an
event of default specified in Section 1203, to the payment of or on account of
the principal of and interest on such Notes, or (c) prevent the application by
the Trustee or any Paying Agent of any moneys deposited prior to the happening
of any event of default specified in Section 1203, with the Trustee or such
Paying Agent in trust for the purpose of paying a specified installment or
installments of interest on the Notes, to the payment of such installments of
interest on the Notes.
SECTION 1207. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Notes, by such Holder's acceptance thereof, authorizes and
directs the Trustee in such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Twelve and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
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SECTION 1208. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article Twelve or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee, or the taking of any other action by the Trustee,
unless and until the Trustee shall have received written notice thereof, within
one business day prior to the relevant payment date, from the Company, any
Holder, any Paying Agent or the holder or representative or any class of Senior
Debt.
SECTION 1209. RIGHTS OF HOLDERS OF SENIOR DEBT NOT IMPAIRED.
No right of any present or future holder of any Senior Debt to enforce
the subordination herein shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
SECTION 1210. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall in good
faith pay over or distribute to the Note Holders, to the Company or to any other
Person cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 1211. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
SECTION 1212. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent 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 shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee.
SECTION 1213. RIGHTS AND OBLIGATIONS SUBJECT TO POWER OF COURT.
The rights of the holders of Senior Debt and the obligations of the
Trustee and the Note Holders set forth in this Article Twelve are subject to the
power of a court of competent jurisdiction to make other equitable provision
reflecting the rights conferred in this Indenture upon the Senior Debt and the
holders thereof with respect to the Notes and the Note Holders thereof by a plan
of reorganization under applicable bankruptcy law.
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ARTICLE THIRTEEN
REDEMPTION AT OPTION OF HOLDER
IN CERTAIN CIRCUMSTANCES
SECTION 1301. REDEMPTION OPTION UPON DEATH OF HOLDER.
Upon the death of any Holder of a Note or Notes, the Company shall be
required to redeem at par up to $20,000 principal amount of, together with
interest accrued to the Redemption Date on, all or such part (in integral
multiples of $666) of the Notes held by the deceased Holder of such Notes at the
date of such Holder's death, as requested in the manner, and subject to the
limitations, set forth below. Redemption of such Notes shall be made within
thirty (30) days following the receipt by the Company or the Trustee of the
following:
(1) a written request for redemption of the Note signed by a
duly authorized representative of the deceased Holder, which request shall set
forth the name of the deceased Holder, the date of death of the deceased
Holder and the principal amount of the Notes to be redeemed;
(2) the certificates representing the Notes to be redeemed;
and
(3) evidence satisfactory to the Trustee and the Company of
the death of such deceased Holder and the authority of the representative to
the extent as may be required by Trustee.
The Notes held by the deceased Holder shall not be entitled to redemption
pursuant to this Section unless each of the following conditions are met:
(i) the Notes to be redeemed have been registered on
the Note Register in the deceased Holder's name since their Date of Issue or
for a period of at least six (6) months prior to the date of the deceased
Holder's death, whichever is less;
(ii) either the Company or the Trustee has been notified
in writing of the request for redemption within one hundred eighty (180) days
after the date of the deceased Holder's death; and
(iii) not more than $100,000 principal amount of Notes
(including those subject to the particular redemption request) have been
redeemed from Holders in the past twelve (12) months pursuant to this Section
1301.
Authorized representatives of a Holder shall include only the following:
executors, administrators or other legal representatives of an estate; trustee
of a trust; joint owners of Notes owned in joint tenancy or tenancy by the
entirety; custodians; conservators; guardians; attorneys-in-fact; and other
persons generally recognized as having legal authority to act on behalf of
another.
For purposes of this Article Thirteen the death of a person owning a Note
in joint tenancy or tenancy by the entirety with another or others shall be
deemed the death of the Holder of the
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Note, and the entire principal amount of the Note so held (up to $20,000) shall
be subject to redemption in accordance with the provisions of this Article
Thirteen. For purposes of this Article Thirteen, the death of a person owning a
Note by tenancy in common shall be deemed the death of a Holder of a Note only
with respect to the deceased Holder's interest in the Note so held (up to
$20,000) by tenancy in common; except that in the event a Note is held by
husband and wife as tenants in common, the death of either shall be deemed the
death of the Holder of the Note, and the entire principal amount of the Note so
held shall be subject to redemption in accordance with the provisions of this
Article Thirteen. A Person who, during his or her lifetime, was entitled to
substantially all of the beneficial interest of ownership of a Note will, upon
such person's death, be deemed the Holder thereof for purposes of this Article
Thirteen, regardless of the registered Holder, if such beneficial interest can
be established to the satisfaction of the Trustee. Such beneficial interest will
be deemed to exist in typical cases of street name or nominee ownership,
ownership under the Uniform Gifts to Minors Act, community property or other
joint ownership arrangements between a husband and wife, and trust arrangement
where one person has substantially all of the beneficial ownership interest in
the Note during his or her lifetime. Beneficial interests shall include the
power to sell, transfer or otherwise dispose of a Note and the right to receive
the proceeds therefrom, as well as interest and principal payment with respect
thereto.
SECTION 1302. REDEMPTION OF NOTES.
Within thirty (30) days after the receipt of the Company or the Trustee
of any request for redemption of the Notes (or any portion thereof) duly made
pursuant to section 1301, the Company shall deposit with the Trustee or with a
Paying Agent an amount of money sufficient to repay the principal amount of all
Notes which are to be redeemed, together with interest accrued thereon to the
Redemption Date, exclusive of installments of interest with a Stated Maturity on
or prior to the Redemption Date, payment of which shall have been made or duly
provided for to the registered Holders of the Notes on the relevant Record Dates
in accordance with Section 307. The Notes so to be redeemed shall become due and
payable on the Redemption Date with respect to each such Note at the amount to
be repaid as provided above and from and after the Redemption Date (unless the
Company shall default in such repayment) such Note shall cease to bear interest.
Immediately upon deposit with the Trustee or with a Paying Agent of the
amounts as provided above with respect to each Note (or portion thereof), the
Company shall cause such Note (or portion thereof) to be repaid. 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 on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Note duly requested to be repaid upon surrender shall not be
repaid upon the Redemption Date, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Note.
No premium shall be payable by the Company upon redemptions of Notes
pursuant to this Article Thirteen.
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If all or any portion of the Notes otherwise eligible for redemption
under this Article Thirteen are not so repurchased because of the $100,000
limitation of Section 1301, such unredeemed amount shall be subject to
redemption in the first month thereafter in which such Notes would then be so
eligible.
SECTION 1303. NOTES REDEEMED IN PART.
The Company shall execute and the Trustee shall authenticate and deliver,
with respect to any Note surrendered pursuant to this Article Thirteen and to be
repaid only in part, to the Holder of such Note, without service charge, a new
Note or Notes, of any authorized denomination as requested by such holder, in
aggregate principal amount equal to and in exchange for the unrepaid portion of
the principal of the Note so surrendered and repaid in part. If required by the
Company or the Trustee, such Note so surrendered shall be duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by the authorized representative of the
Holder thereof or his attorney duly authorized in writing.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective seals to be hereunto affixed and attested,
all as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY LEASING, INC.
By
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Attest:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By
---------------------------------
, Its
------------ ---------------
Attest:
-------------------------------
-------------------, ----------
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