RESOURCE AMERICA, INC.
and each of the Guarantors named herein
TO
THE BANK OF NEW YORK, Trustee
12% SENIOR NOTES DUE AUGUST 1, 2008
--------------------------------------------------------------------------------
INDENTURE
Dated as of April 10, 2003
--------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................1
SECTION 1.1 Definitions.............................................................................1
SECTION 1.2 Compliance Certificates and Opinions...................................................22
SECTION 1.3 Form of Documents Delivered to Trustee.................................................23
SECTION 1.4 Acts of Holders; Record Dates..........................................................23
SECTION 1.5 Notices, Etc., to Trustee and Company..................................................25
SECTION 1.6 Notice to Holders; Waiver..............................................................26
SECTION 1.7 Conflict with Trust Indenture Act......................................................26
SECTION 1.8 Effect of Headings and Table of Contents...............................................26
SECTION 1.9 Successors and Assigns.................................................................26
SECTION 1.10 Separability Clause...................................................................26
SECTION 1.11 Benefits of Indenture.................................................................27
SECTION 1.12 Governing Law; Choice of Forum........................................................27
SECTION 1.13 Legal Holidays........................................................................28
ARTICLE TWO SENIOR NOTE FORMS......................................................................30
SECTION 2.1 Forms Generally........................................................................30
SECTION 2.2 Form of Face of Senior Note............................................................30
SECTION 2.3 Form of Reverse of Senior Note.........................................................34
SECTION 2.4 Form of Legend for Global Senior Notes.................................................36
SECTION 2.5 Legending of the Securities; Restrictions on Transfers.................................36
SECTION 2.6 Form of Trustee's Certificate of Authentication........................................37
SECTION 2.7 Form of Assignment and Election to Purchase............................................37
ARTICLE THREE THE SENIOR NOTES......................................................................39
SECTION 3.1 Global Senior Note; Depositary.........................................................39
SECTION 3.2 Reserved...............................................................................39
SECTION 3.3 Denominations..........................................................................39
SECTION 3.4 Execution, Authentication, Delivery and Dating.........................................39
SECTION 3.5 Temporary Senior Notes.................................................................40
SECTION 3.6 Registration; Registration of Transfer and Exchange....................................40
SECTION 3.7 Mutilated, Destroyed, Lost and Stolen Senior Notes.....................................42
SECTION 3.8 Payment of Interest; Interest Rights Preserved.........................................42
SECTION 3.9 Persons Deemed Owners..................................................................44
SECTION 3.10 Cancellation..........................................................................44
SECTION 3.11 Computation of Interest...............................................................45
SECTION 3.12 CUSIP Numbers.........................................................................45
ARTICLE FOUR BOOK-ENTRY PROVISIONS FOR GLOBAL SENIOR NOTES..........................................46
SECTION 4.1 Applicability of Article...............................................................46
SECTION 4.2 Book-Entry Provisions For Global Senior Note...........................................46
ARTICLE FIVE REMEDIES...............................................................................49
SECTION 5.1 Events of Default......................................................................49
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.....................................50
i
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee........................51
SECTION 5.4 Trustee May File Proofs of Claim.......................................................52
SECTION 5.5 Trustee May Enforce Claims Without Possession of Senior Notes..........................52
SECTION 5.6 Application of Money Collected.........................................................52
SECTION 5.7 Limitation on Suits....................................................................53
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest..............53
SECTION 5.9 Restoration of Rights and Remedies.....................................................54
SECTION 5.10 Rights and Remedies Cumulative........................................................54
SECTION 5.11 Delay or Omission Not Waiver..........................................................54
SECTION 5.12 Control by Holders....................................................................54
SECTION 5.13 Waiver of Past Defaults...............................................................55
SECTION 5.14 Undertaking for Costs.................................................................55
SECTION 5.15 Waiver of Usury, Stay or Extension Laws...............................................55
ARTICLE SIX THE TRUSTEE............................................................................57
SECTION 6.1 Certain Duties and Responsibilities....................................................57
SECTION 6.2 Notice of Defaults.....................................................................57
SECTION 6.3 Certain Rights of Trustee..............................................................58
SECTION 6.4 Not Responsible for Recitals or Issuance of Senior Notes...............................59
SECTION 6.5 May Hold Senior Notes..................................................................59
SECTION 6.6 Money Held in Trust....................................................................59
SECTION 6.7 Compensation and Reimbursement.........................................................59
SECTION 6.8 Disqualification; Conflicting Interests................................................60
SECTION 6.9 Corporate Trustee Required; Eligibility................................................61
SECTION 6.10 Resignation and Removal; Appointment of Successor.....................................61
SECTION 6.11 Acceptance of Appointment by Successor................................................62
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business...........................63
SECTION 6.13 Preferential Collection of Claims Against Company.....................................63
SECTION 6.14 Appointment of Authenticating Agent...................................................63
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.....................................66
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders;
Trustee to Furnish Senior Note Register................................................66
SECTION 7.2 Preservation of Information; Communications to Holders.................................66
SECTION 7.3 Reports by Trustee.....................................................................66
SECTION 7.4 Reports by Company.....................................................................67
ARTICLE EIGHT AMENDMENTS, SUPPLEMENTS AND WAIVERS...................................................68
SECTION 8.1 Supplemental Indentures Without Consent of Holders.....................................68
SECTION 8.2 Supplemental Indentures with Consent of Holders........................................68
SECTION 8.3 Execution of Supplemental Indentures...................................................70
SECTION 8.4 Effect of Supplemental Indentures......................................................70
SECTION 8.5 Conformity with Trust Indenture Act....................................................70
SECTION 8.6 Reference in Senior Notes to Supplemental Indentures...................................70
SECTION 8.7 Notice of Supplemental Indenture.......................................................71
ii
ARTICLE NINE COVENANTS..............................................................................72
SECTION 9.1 Payment of Principal, Premium and Interest.............................................72
SECTION 9.2 Maintenance of Office or Agency........................................................72
SECTION 9.3 Money for Senior Notes Payments to Be Held in Trust....................................72
SECTION 9.4 Statement by Officers as to Default....................................................73
SECTION 9.5 Payment of Taxes and Other Claims......................................................74
SECTION 9.6 Maintenance of Properties..............................................................74
SECTION 9.7 Corporate Existence; Keeping of Books..................................................75
SECTION 9.8 Insurance..............................................................................75
SECTION 9.9 Net Worth Maintenance..................................................................75
SECTION 9.10 Limitations on Indebtedness...........................................................76
SECTION 9.11 Reserved.............................................................................77
SECTION 9.12 Liquidity Maintenance.................................................................77
SECTION 9.13 Limitations on Restricted Payments....................................................78
SECTION 9.14 Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries........79
SECTION 9.15 Limitations on Transactions with Affiliates...........................................80
SECTION 9.16 Limitations on Liens and Guarantees...................................................81
SECTION 9.17 Offer to Purchase upon a Change of Control Event......................................81
SECTION 9.18 Payments for Consent..................................................................84
SECTION 9.19 Waiver of Certain Covenants...........................................................84
SECTION 9.20 Asset Sales...........................................................................84
SECTION 9.21 Additional Subsidiary Guarantees......................................................86
SECTION 9.22 Special Provisions regarding Atlas Pipeline Partners, L.P.............................86
ARTICLE TEN MERGER, CONSOLIDATION AND TRANSFER OF ASSETS...........................................87
SECTION 10.1 Merger, Consolidation or Transfer of Assets of the Company............................87
SECTION 10.2 Successor Substituted.................................................................87
SECTION 10.3 Senior Notes to Be Secured in Certain Events..........................................87
ARTICLE ELEVEN REDEMPTION OF SENIOR NOTES............................................................89
SECTION 11.1 Applicability of Article..............................................................89
SECTION 11.2 Optional Redemption...................................................................89
SECTION 11.3 Election to Redeem; Selection by Trustee of Senior Notes to Be Redeemed...............89
SECTION 11.4 Notice of Redemption..................................................................89
SECTION 11.5 Deposit of Redemption Price...........................................................90
SECTION 11.6 Senior Notes Payable on Redemption Date...............................................90
SECTION 11.7 Senior Notes Redeemed in Part.........................................................91
SECTION 11.8 Offer to Purchase by Application of Excess Proceeds...................................91
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE....................................................94
SECTION 12.1 Option to Effect Legal Defeasance or Covenant Defeasance..............................94
SECTION 12.2 Legal Defeasance and Discharge........................................................94
SECTION 12.3 Covenant Defeasance...................................................................94
SECTION 12.4 Conditions to Legal or Covenant Defeasance............................................95
SECTION 12.5 Deposited Money and U.S. Government Obligations To Be Held
in Trust; Other Miscellaneous Provisions..............................................96
iii
SECTION 12.6 Reinstatement.........................................................................97
ARTICLE THIRTEEN NOTE GUARANTEES.......................................................................98
SECTION 13.1 Guarantee.............................................................................98
SECTION 13.2 Limitation on Guarantor Liability.....................................................99
SECTION 13.3 Execution and Delivery of Subsidiary Guarantee........................................99
SECTION 13.4 Guarantors May Consolidate, etc., on Certain Terms...................................101
ARTICLE FOURTEEN MISCELLANEOUS.......................................................................103
SECTION 14.1. No Recourse Against Others..........................................................103
SECTION 14.2. Execution in Counterparts...........................................................103
iv
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF
1939 AND INDENTURE, DATED AS OF APRIL 10, 2003
Trust Indenture Act Section Indenture Section
--------------------------- ------------------
310(a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.9
(b) 1.5, 6.8, 6.9, 6.10, 6.11
(c) Not Applicable
311(a) 6.13
(b) 6.13
(c) Not Applicable
312(a) 7.1, 7.2
(b) 7.2
(c) 7.2
313(a) 7.3
(b)(1) Not Applicable
(b)(2) 7.3
(c) 1.6, 7.3
(d) 7.3
314(a) 1.6, 7.4, 9.4
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
(f) Not Applicable
315(a) 6.1
(b) 1.6, 6.2
(c) 6.1
(d) 6.1
(e) 5.14
316(a)(last sentence) 1.1 (definition of "Outstanding")
(a)(1)(A) 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.7, 5.8
(c) 1.4
317(a)(1) 5.3
(a)(2) 5.4
(b) 6.6, 9.3
318(a) 1.7
(b) 6.6, 9.3
(c) 1.7
v
INDENTURE, dated as of April 10, 2003 among RESOURCE AMERICA, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the Guarantors and THE BANK OF NEW
YORK, a New York banking corporation, as Trustee (herein called the "Trustee").
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Senior
Notes (as defined below) by the Holders thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Senior Notes, as follows:
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(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, 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
GAAP;
(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;
(5) the word "including" is not limiting;
(6) references in this Indenture to any agreement, other
document or law "as amended" or "as amended from time
to time," or to "amendments" of any document or law,
shall include any amendments, supplements,
replacements, renewals or other modifications from
time to time, provided in the case of modifications
to documents, such modifications are permissible
under this Indenture; and
(7) references in this Indenture to any law include
regulations promulgated thereunder from time to time.
"Accredited Investor" means an accredited investor within the meaning
of Rule 501(a) of Regulation D under the Securities Act.
1
"Acquired Indebtedness" means Indebtedness of a person (i) existing at
the time such Person becomes a Subsidiary of or is merged with or into any other
Person or (ii) assumed in connection with the acquisition of assets from such
Person, in each case, other than Indebtedness incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary of such other Person or such
acquisition. Acquired Indebtedness shall be deemed to be incurred on the date of
the related acquisition of assets from such Person or the date such Person
becomes a Subsidiary of or is merged with or into such other Person.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Interest" means any Registration Penalty and the interest,
if any, that shall accrue on any interest on the Senior Notes the payment of
which has not been made on the applicable Interest Payment Date and which shall
accrue at the rate per annum specified or determined as specified in such Senior
Note.
"Additional Notes" means additional Senior Notes (other than the
Original Senior Notes) issued under this Indenture in accordance with Section
9.10 hereof as part of the same series as the Original Senior Notes.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly Controlling or Controlled by or under direct or
indirect common Control with such specified Person and any legal or beneficial
owner, directly or indirectly, of 20% or more of the Voting Stock of such
specified Person. Notwithstanding the foregoing, no Securitization Entity shall
be deemed an Affiliate of the Company.
"Applicable Law" means all applicable provisions of all (i)
constitutions, treaties, statutes, laws, rules, regulations and ordinances of
any Governmental Authority, (ii) Governmental Approvals and (iii) orders,
decisions, judgments, awards and decrees of any Governmental Authority.
"Asset Sale" means
(a) the sale, lease, conveyance or other disposition of
any assets or rights; provided, however, that the
sale, conveyance or other disposition of all or
substantially all of the assets of the Company and
its Subsidiaries taken as a whole will be governed by
Section 9.17 hereof and/or by Section 10.1 hereof and
not by the provisions of Section 9.20; and
(b) the issuance or sale of Capital Stock in any of the
Company's Subsidiaries.
Notwithstanding the preceding, none of the following items shall be
deemed to be an Asset Sale:
(1) any single transaction or series of related
transactions that involves assets having a Fair
Market Value of less than $5.0 million;
2
(2) a transfer of assets between or among the Company and
its Subsidiaries other than any of the Atlas Pipeline
Entities; provided however, that it shall not be
deemed an Asset Sale if the Company or any of its
Subsidiaries acquires assets or Capital Stock of an
Oil and Gas Business, and, within 6 months of such
acquisition, sells all or a portion of such assets or
Capital Stock to an Atlas Pipeline Entity;
(3) an issuance of Capital Stock by a Subsidiary to the
Company or to another Subsidiary;
(4) the sale or lease of equipment, inventory and
accounts receivable in the ordinary course of
business;
(5) the sale or other disposition of cash or cash
equivalents;
(6) a permitted Restricted Payment;
(7) the sale or transfer (whether or not in the ordinary
course of business) of oil and gas properties or
direct or indirect interests in real property,
provided, however, that at the time of such sale or
transfer such properties do not have associated with
them any proved reserves;
(8) the abandonment, farm-out, lease or sublease of
developed or undeveloped oil and gas properties in
the ordinary course of business;
(9) the trade or exchange by the Company or any
Subsidiary of any oil and gas property owned or held
by the Company or such Subsidiary for any oil and gas
property owned or held by another Person;
(10) the sale or transfer of hydrocarbons or other mineral
products in the ordinary course of business;
(11) sales of assets to a Securitization Entity for the
Fair Market Value thereof, including cash in an
amount at least equal to 75% of the book value
thereof as determined in accordance with GAAP, it
being understood that, for the purposes of this
clause (11), notes received in exchange for the
transfer of accounts receivable and related assets
will be deemed cash if the Securitization Entity or
other payor is required to repay said notes as soon
as practicable from available cash collections less
amounts required to be established as reserves
pursuant to contractual agreements entered into as
part of a the securitization transaction with
entities that are not Affiliates of the Company; and
3
(12) transfers of assets (or a fractional undivided
interest therein) by a Securitization Entity.
"Asset Sale Offer" has the meaning specified in Section 11.8.
"Atlas Pipeline Entities" means Atlas Pipeline Partners, L.P., a
Delaware limited partnership, and its Subsidiaries and Atlas Pipeline Partners
GP, LLC, a Delaware limited liability company.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Senior
Notes.
"Authorized Officer" means any officer of the Company designated by a
Board Resolution to take certain actions as specified in this Indenture.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment by (ii) the sum of all such principal payments.
"Board of Directors" means the board of directors or any duly
authorized committee of that board. Unless otherwise indicated, "Board of
Directors" means the Board of Directors of the Company.
"Board 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, or by action of an Authorized Officer
designated as such pursuant to a resolution of 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.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" of any Person means any obligations of such
Person under any capital lease for real or personal property which, in
accordance with GAAP, is required to be recorded as a capitalized lease
obligation; and, for the purpose of this Indenture, the amount of such
obligation at any date shall be the capitalized amount thereof at such date,
determined in accordance with GAAP.
"Capital Stock" in any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents or
interests in (however designated) capital stock in such Person, including, with
respect to a corporation, common stock, Preferred Stock and other corporate
stock and, with respect to a partnership, partnership interests, whether general
or limited, and any rights (other than debt securities convertible into
corporate stock, partnership interests or other capital stock), warrants or
options exchangeable for or convertible into such corporate stock, partnership
interests or other capital stock.
"Change of Control Event" means an event or series of events by which
4
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other
than the Existing Management Group, is or becomes
after the date of issuance of the Senior Notes the
"beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act as in effect on the date
of the Indenture), of more than 40% of the total
voting power of all Voting Stock of the Company then
outstanding;
(b) (1) another corporation merges into the Company or
the Company consolidates with or merges into any
other corporation, or
(2) the Company conveys, transfers or leases all or
substantially all its assets to any person or group
in one transaction or a series of transactions other
than any conveyance, transfer or lease between the
Company and a Wholly-Owned Subsidiary of the Company,
and in the case of each of clause (1) and clause (2),
with the effect that a person or group, other than
the Existing Management Group, is or becomes the
beneficial owner of more than 40% of the total voting
power of all Voting Stock of the surviving or
transferee corporation of such transaction or series
of transactions;
(c) during any period of two consecutive years,
individuals who at the beginning of such period
constituted the Company's Board of Directors, or
whose nomination for election by the Company's
shareholders was approved by a vote of a majority of
the directors then still in office who were either
directors at the beginning of such period or whose
election or nomination for election was previously so
approved, cease for any reason to constitute a
majority of the directors then in office; or
(d) the shareholders of the Company shall approve any
plan or proposal for the liquidation or dissolution
of the Company.
"Change of Control Purchase Date," "Change of Control Purchase Notice,"
"Change of Control Purchase Price" and "Change of Control Purchase Offer" are
defined in Section 9.17.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board or its President, and by its Chief Financial Officer, its
Controller or an Assistant Controller, and delivered to the Trustee.
5
"Consolidated Depreciation and Amortization Expense" means with respect
to any Person for any period, the total amount of depreciation and amortization
expense of such Person for such period on a consolidated basis and otherwise
determined in accordance with GAAP.
"Consolidated EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income (Loss) of such Person for such period plus (a)
provision for taxes based on income or profits of such Person for such period
deducted in computing Consolidated Net Income (Loss) plus (b) Consolidated
Interest Expense of such Person for such period, plus (c) Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent such depreciation and amortization were deducted in computing
Consolidated Net Income (Loss), plus (d) without duplication, any other non-cash
charges reducing Consolidated Net Income (Loss) of such Person for such period
less (e) without duplication, non-cash items increasing Consolidated Net Income
(Loss) of such Person for such period in each case, on a consolidated basis for
such Person in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any period, the
sum of: (a) consolidated interest expense of such Person for such period, other
than the interest expense on Permitted Acquisition Indebtedness, Permitted
Repurchase Facilities and Indebtedness pursuant to that certain Credit
Agreement, dated as of July 31, 2002, by and among Atlas America, Inc., Wachovia
Bank, National Association, Union Bank of California, N.A. and the other parties
thereto as amended, modified, supplemented, extended, restated, replaced,
renewed or refinanced (the "Wachovia Facility"), whether paid or accrued (except
to the extent accrued in a prior period), to the extent such expense was
deducted in computing Consolidated Net Income (Loss) (including amortization of
original issue discount, non-cash interest payments and the interest component
of Capital Lease Obligations, excluding amortization of deferred financing fees)
and (b) consolidated capitalized interest of such Person for such period,
whether paid or accrued, to the extent such expense was deducted in computing
Consolidated Net Income (Loss).
"Consolidated Net Assets" of any Person as of any date means the total
amount of assets of such Person and its Subsidiaries (less applicable reserves)
on a consolidated basis at the end of the fiscal quarter immediately preceding
such date for which financial information is available, as determined in
accordance with GAAP.
"Consolidated Net Income (Loss)" of any Person means, for any period,
the consolidated net income (or loss) of such Person and its consolidated
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income (loss), by excluding, without
duplication, (i) the portion of net income (or loss) of any other Person (other
than any of such Person's consolidated Subsidiaries) in which such Person or any
of its Subsidiaries has an ownership interest, except to the extent of the
amount of dividends or other distributions actually paid to such Person or its
consolidated Subsidiaries in cash by such other Person during such period, (ii)
net income (or loss) of any Person combined with such Person or any of its
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (iii) any gain or loss, net of taxes, realized upon
the termination of any employee pension benefit plan and (iv) solely for the
6
purpose of determining Consolidated Net Income (Loss) in connection with the
calculation of Restricted Payments permitted to be made hereunder, the net
income of any consolidated Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulations applicable to that
Subsidiary or its shareholders; provided that, upon the termination or
expiration of such dividend or distribution restrictions, the portion of net
income (or loss) of such consolidated Subsidiary allocable to such Person and
previously excluded shall be added to the Consolidated Net Income (Loss) of such
Person to the extent of the amount of dividends or other distributions available
to be paid to such Person in cash by such Subsidiary.
"Consolidated Net Worth" of any Person and its Subsidiaries mean as of
the date of determination all amounts that would be included under stockholders'
equity on a consolidated balance sheet of such Person and its Subsidiaries
determined in accordance with GAAP.
"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 ownership of voting securities (or pledge of voting
securities if the pledgee thereof may on the date of determination exercise or
control the exercise of the voting rights of the owner of such voting
securities), by contract or otherwise; and the terms "to Control," "Controlling"
and "Controlled" have meanings correlative to the foregoing.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office as of the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Covenant Defeasance" has the meaning specified in Section 12.3.
"Credit Support" means credit support designed to enhance the
likelihood of payment on securities issued in connection with a securitization
of loans or other assets which are generally funded with the proceeds of such
securitization, including without limitation subordination of certain classes of
securities, insurance policies, representations and warranties, reserve funds,
liquidity reserves, lost and missing note reserves and letters of credit.
"Default" means an event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Depositary" has the meaning specified in Section 3.1.
"Disqualified Capital Stock" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part on, or prior to, or is
7
exchangeable for debt securities of the Company or its Subsidiaries prior to,
the final Stated Maturity of principal of the Senior Notes; provided that only
the amount of such Capital Stock that is redeemable prior to the Stated Maturity
of principal of the Senior Notes shall be deemed to be Disqualified Capital
Stock.
"Disinterested Director" of any Person means, with respect to any
transaction or series of related transactions, a member of the board of
directors of such Person who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of related
transactions.
"Event of Default" has the meaning specified in Section 5.1.
"Excess Proceeds" has the meaning specified in Section 9.20. "Exchange
Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means any offer made pursuant to a Registration Rights
Agreement to exchange Series B Senior Notes for Additional Notes that are
Restricted Securities.
"Existing Management Group" means a majority of the executive officers
of the Company as of the date of the Indenture, members of their immediate
families, certain trusts for their benefit and legal representatives of, or
heirs, beneficiaries or legatees receiving Capital Stock (or securities
convertible or exchangeable for Capital Stock) under any such person's estate.
"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under
compulsion to complete the transaction; provided, however, that the Fair Market
Value of any asset or assets shall be determined by the Board of Directors of
the Company, acting in good faith, and shall be evidenced by a Board Resolution.
"Fixed Charges" means, with respect to any Person for any period, the
sum of (i) Consolidated Interest Expense of such Person for such period, and
(ii) the product of (A) all cash dividend payments on any series of Preferred
Stock or Disqualified Capital Stock of such Person or its Subsidiaries for such
period, and (B) a fraction, the numerator of which is one and the denominator of
which is one minus the then-current combined federal, state and local statutory
tax rate of such Person, expressed as a decimal, in each case on a consolidated
basis and in accordance with GAAP.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date of computation.
"Global Senior Note" means a Senior Note bearing the legend prescribed
in Section 2.4 evidencing all or part of the Senior Notes, authenticated and
delivered to the Depositary or its nominee, and registered in the name of such
Depositary or nominee.
"Global Senior Note Holder" has the meaning specified in Section 3.1.
8
"Governmental Approval" means an authorization, consent, approval,
permit, license, registration or filing with any Governmental Authority.
"Governmental Authority" with respect to any Person, means any nation
(including an Indian nation), any state or other political subdivision thereof
and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including any
government authority, agency, department, board, commission or instrumentality
of the United States, any state of the United States or any political
subdivision thereof, and any tribunal or arbitrator(s) of competent jurisdiction
in each case, having jurisdiction or authority over such Person.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any Person and any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such Person
(whether arising by virtue of partnership arrangements, or by agreements to
purchase assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor" means each of:
(a) the Company's existing Subsidiaries (other than the
Atlas Pipeline Entities and Anthem Securities, Inc.);
and
(b) any other Subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions hereof;
and their respective successors and assigns.
"Guaranteed Indebtedness" of any Person means, without duplication, all
Indebtedness of any other Person guaranteed directly or indirectly in any manner
by such Person, or in effect guaranteed directly or indirectly by such person
through an agreement (i) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (iii) to
supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property
be received or such services be rendered), (iv) to maintain working capital or
equity capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor, or (v) otherwise to assure a
creditor with respect to Indebtedness against loss; provided that the term shall
not include endorsements for collection of deposit, in either case in the
ordinary course of business.
9
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement.
"Holders" or "Senior Note Holders" means the Person in whose name a
Senior Note is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall be deemed the Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities arising in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under letter of credit
facilities, and in connection with any agreement by such Person to purchase,
redeem, exchange, convert or otherwise acquire for value any Capital Stock of
such Person now or hereafter outstanding, (ii) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments, (iii) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person, but excluding trade payables arising in the ordinary course of business,
(iv) all obligations under Interest Rate Agreements of such Person, (v) all
Capital Lease Obligations of such Person, (vi) all Indebtedness referred to in
clauses (i) through (v) above of other Persons and all dividends payable by
other Persons, the payment of which is secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien, upon or with respect to property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness (the amount of
such obligations being deemed to be the lesser of the value of such property or
asset or the amount of the obligations so secured), (vii) all guarantees by such
Person of Guaranteed Indebtedness, (viii) all Disqualified Capital Stock (valued
at the greater of book value and voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends) of such Person, and (ix) any
amendment, supplement, modification, deferral, renewal, extension, refunding or
refinancing or any liability of the types referred to in clauses (i) through
(viii) above. For purposes hereof, (x) the "maximum fixed repurchase price" of
any Disqualified Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value is to be determined in good faith by the
board of directors (or any duly authorized committee thereof) of the issuer of
10
such Disqualified Capital Stock, and (y) Indebtedness is deemed to be incurred
pursuant to a revolving credit facility each time an advance is made thereunder.
"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,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the date on which any installment of
interest (including any Additional Interest) on the Senior Notes becomes due and
payable, as provided in Section 2.2.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, repurchase agreement, futures contract or other
financial agreement or arrangement designed to protect the Company or any
Subsidiary against fluctuations in interest rates.
"Issue Date" means the date Original Senior Notes are first issued.
"Junior Indebtedness" means any Indebtedness of the Company or any
Guarantor subordinated in right of payment of either principal, premium (if any)
or interest (including any Additional Interest) thereon to the Senior Notes or
Subsidiary Guarantees.
"Legal Defeasance" has the meaning specified in Section 12.2.
"Legal Holiday" means any Saturday, Sunday or other day on which banks
in the States of New York or Pennsylvania are authorized or obligated by law or
executive order to be closed for business.
"Leverage Ratio" as of any date of determination means the ratio of (i)
the aggregate amount of all Indebtedness and Disqualified Capital Stock of the
Company, excluding (A) Indebtedness and Guarantees thereof permitted to be
incurred pursuant to Section 9.10 (e) (1) (other than Incurrence by the Company
and its Subsidiaries of Indebtedness under the Wachovia Facility), (2), (3),
(4), (6) and (7) hereof; (B) Hedging Obligations permitted to be incurred
pursuant to Section 9.10 (e)(11) hereof; and (C) Junior Indebtedness of the
Company to (ii) the Consolidated Net Worth of the Company.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Liquid Assets" shall include: (i) cash; (ii) any of the following
instruments that have a remaining term to maturity not in excess of 90 days from
the determination date: (a) repurchase agreements on obligations of, or are
guaranteed as to timely receipt of principal and interest by, the United States
or any agency or instrumentality thereof when such obligations are backed by the
full faith and credit of the United States provided that the party agreeing to
repurchase such obligations is a primary dealer in U.S. government securities,
11
(b) federal funds and deposit accounts, including but not limited to
certificates of deposit, time deposits and bankers' acceptances of any U.S.
depository institution or trust company incorporated under the laws of the
United States or any state, provided that the debt of such depository
institution or trust company at the date of acquisition thereof has been rated
by Standard & Poor's Corporation in the highest short-term rating category or
has an equivalent rating from another nationally recognized rating agency, or
(c) commercial paper of any corporation incorporated under the laws of the
United States or any state thereof that on the date of acquisition is rated
investment grade by Standard & Poor's Corporation or has an equivalent rating
from another nationally recognized rating agency; (iii) any debt instrument
which is an obligation of, or is guaranteed as to the receipt of principal and
interest by the United States, its agencies or any U.S. government sponsored
enterprise, or (iv) any mortgage-backed or mortgage-related security issued by
the United States, its agencies, or any U.S. government sponsored enterprise
which the payment of principal and interest from the mortgages underlying such
securities will be passed through to the holder thereof and which such security
has a remaining weighted average maturity of 15 years or less. Notwithstanding
the foregoing, Liquid Assets shall not include any debt instruments, securities
or collateralized mortgage obligations (real estate mortgage investment
conduits) that would be classified as a "High-Risk Mortgage Security" pursuant
to the policy statement adopted by the Federal Financial Institutions
Examination Counsel on February 10, 1992, as reflected in Volume I of the
Federal Reserve Report Service, Part 3-1562.
"Maturity", when used with respect to any Senior Note, means the date
on which the principal of such Senior Note or with respect to any installment of
principal, when such installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, upon repurchase or otherwise.
"Net Cash Proceeds" means, with respect to any issuance or sale of
Capital Stock, or options, warrants or rights to purchase Capital Stock, or debt
securities or Capital Stock that have been converted into or exchanged for
Capital Stock, or any capital contribution in respect of Capital Stock, as
referred to under Section 9.13 hereof, the proceeds of such issuance or sale or
capital contribution in the form of cash or cash equivalents, including payments
in respect of deferred payment obligations when received in the form of, or
stock or other assets when disposed for, cash or cash equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Subsidiary of the Company), net of attorney's fees, accountant's fees and
brokerage, consulting, underwriting and other fees and expenses actually
incurred in connection with such issuance or sale or capital contribution and
net of taxes paid or payable by the Company as a result thereof.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries (other than the Atlas Pipeline Entities) in
respect of any Asset Sale (including, without limitation, any cash received upon
the sale or other disposition of any non-cash consideration received in any
Asset Sale), net of the direct costs relating to such Asset Sale, including
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
12
payable as a result of the Asset Sale, in each case after taking into account
any available tax credits or deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets that were the subject of such Asset Sale and any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP for adjustment in respect of any liabilities
associated with such asset or assets and retained by the Company after such sale
or other disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.
"Non-Recourse Indebtedness" means, with respect to any Person,
Indebtedness of such Person for which (i) the sole recourse (excluding certain
exceptions relating to fraud, intentional misrepresentation, proceeds of the
assets, environmental liabilities and similar matters customary in non-recourse
indebtedness) for collection of principal and interest on such Indebtedness is
against the specific assets identified in the instruments evidencing or securing
such Indebtedness, (ii) such assets were acquired with the proceeds of such
Indebtedness or such Indebtedness was incurred concurrently with the acquisition
of such assets; and (iii) no other assets (other than Credit Support) of such
Person or of any other Person may be realized upon or in collection of principal
or interest on such Indebtedness.
"Offer Amount," "Offer Period" and "Purchase Date" are defined in
Section 11.8.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the Chief Executive Officer or the
President, and by the Chief Executive Officer, the President, the Chief
Financial Officer, the Controller or an Assistant Controller, of the Company
(provided that no one person signs twice on behalf of the Company), and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 9.4 shall be the principal executive, financial or
accounting officer of the Company. Unless otherwise indicted, "Officers'
Certificate" means an Officers' Certificate of the Company.
"Oil and Gas Business" means:
(a) the acquisition, exploration, development, operation
and disposition of interests in oil, gas and other
hydrocarbon properties;
(b) the gathering, marketing, treating, processing,
storage, selling and transporting of any production
from such interests or properties;
(c) any business relating to exploration for or
development, production, treatment, processing,
storage, transportation or marketing of oil, gas and
other minerals and products produced in association
therewith and
13
(d) any activity that is ancillary to or necessary or
appropriate for the activities described in clauses
(a) through (c) of this definition.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Senior Notes" means the 12% Senior Notes due August 1, 2008,
as amended or supplemented from time to time in accordance with the terms
hereof, issued under this Indenture on the Issue Date.
"Outstanding", when used with respect to Senior Notes, means, as of the
date of determination, all Senior Notes theretofore authenticated and delivered
under this Indenture, except:
(a) Senior Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Senior Notes for whose payment or redemption money in
the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Senior
Notes; provided that, if such Senior 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;
and
(c) Senior Notes paid pursuant to Section 2.7 or in
exchange for or in lieu of which other Senior Notes
have been authenticated and delivered pursuant to
this Indenture, other than any such Senior Notes in
respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Senior
Notes are held by a bona fide purchaser in whose
hands such Senior Notes are valid obligations of the
Company; provided, however, that in determining
whether the Holders of the requisite principal amount
of the Outstanding Senior Notes have given any
request, demand, authorization, direction, notice,
consent or waiver hereunder, Senior Notes owned by
the Company or any other obligor on the Senior Notes
or any Affiliate of the Company 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 Senior
Notes which a Responsible Officer of the Trustee
actually knows to be so owned shall be so
disregarded. Senior 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 Senior Notes and that the pledgee is not the
Company or any other obligor on the Senior Notes or
any Affiliate of the Company.
14
"Pari Passu Indebtedness" means any Indebtedness of the Company that is
pari passu in right of payment of principal, premium (if any) and interest
(including any Additional Interest) thereon to the Senior Notes.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest (including any Additional
Interest) on any Notes on behalf of the Company or, if the Company is acting as
its own Paying Agent, the Company. Initially, the Paying Agent shall be the
Trustee.
"Permitted Acquisition Indebtedness" means any secured funding
arrangement with a financial institution or other lender to the extent (and only
to the extent) funding thereunder is used exclusively to finance or refinance
the purchase or origination of loans, real estate owned, equipment leases or
other assets by the Company or a Subsidiary or to provide related financing
subsequent to such purchase or origination.
"Permitted Business" means the lines of business, including the Oil and
Gas Business and the real estate, equipment leasing and proprietary asset
management businesses, conducted by the Company and its Subsidiaries on the date
hereof and any business similar, related, incidental or ancillary thereto or
that constitutes a reasonable extension or expansion thereof.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made; (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens imposed by law and arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; (iii) Liens incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security; (iv)
Liens incurred or deposits made to secure the performance of tenders, bids,
leases, statutory or regulatory obligations, surety and appeal bonds, progress
payments, development obligations, government contracts, performance and
return-of-money bonds and other obligations of a similar nature, in each case
incurred in the ordinary course of business (exclusive of obligations for the
payment of borrowed money or otherwise constituting a liability in accordance
with GAAP); (v) with respect to property of the Company or any Subsidiary, Liens
granted on such property or assets in favor of the Person from whom the Company
or such Subsidiary acquired such property or assets, which Liens secure the
payment of a contingent portion of the purchase price of such property, so long
as such Liens are granted and such arrangement is entered into in the ordinary
course of business of the Company; (vi) attachment or judgment Liens not giving
rise to a Default or Event of Default and which are being contested in good
faith by appropriate proceedings; (vii) easements, rights-of-way, restrictions,
homeowners association assessments and similar charges or encumbrances that do
not materially interfere with the ordinary course of business of the Company or
any of its Subsidiaries; (viii) zoning restrictions, licenses, restrictions on
15
the use of real property or minor irregularities in title thereto, which do not
materially impair the use of such property in the ordinary course of business of
the Company or any Subsidiary or the value of such real property for the purpose
of such business; (ix) Liens in favor of the Company or any Subsidiary; (x)
Liens existing on the Issue Date; (xi) Liens securing Non-Recourse Indebtedness
of the Company or a Subsidiary thereof, (xii) Liens with respect to the property
or assets of the Company or a Subsidiary securing Indebtedness permitted to be
incurred pursuant to Section 9.10(e)(1), (2), (3), (4), (6) and (7) or Section
9.22 hereof; (xiii) Liens granted after the Issue Date on any assets or Capital
Stock of the Company or its Subsidiaries created in favor of the Holders; (xiv)
Liens with respect to the property or assets of a Subsidiary granted by such
Subsidiary to the Company to secure Indebtedness owing to the Company; (xv)
Liens securing Indebtedness which is incurred to refinance Permitted
Indebtedness, provided that such Liens constitute Permitted Liens under this
clause (xv) only to the extent that they do not extend to or cover any property
or assets of the Company or any Subsidiary other than the property or assets
securing the Indebtedness being refinanced; (xvi) leases or subleases granted to
others not materially interfering with the ordinary course of business of the
Company or any of its Subsidiaries; (xvii) other Liens securing obligations not
exceeding $1,000,000 in the aggregate; and (xviii) Liens securing Hedging
Obligations of the Company or such Subsidiary so long as such Hedging
Obligations relate to Indebtedness that is, and is permitted under this
Indenture to be, secured by a Lien on the same property securing such Hedging
Obligations.
"Permitted Payment" means, so long as no Default or Event of Default is
continuing,
(a) the purchase, redemption, defeasance or other
acquisition or retirement for value of any Capital
Stock of the Company or any Affiliate (other than a
Wholly-Owned Subsidiary) of the Company, Junior
Indebtedness or Pari Passu Indebtedness in exchange
for (including any such exchange pursuant to the
exercise of a conversion right or privilege where, in
connection therewith, cash is paid in lieu of the
issuance of fractional shares or scrip), or out of
the Net Cash Proceeds or Fair Market Value of
property not constituting Net Cash Proceeds of a
substantially concurrent issue and sale (other than
to a Subsidiary of the Company or to an employee
benefit plan of the Company or any of its
Subsidiaries) of Qualified Capital Stock of the
Company; provided that the Net Cash Proceeds or Fair
Market Value of such property received by the Company
from the issuance of such shares of Qualified Capital
Stock, to the extent so utilized, shall be excluded
from clause (c)(iii) of Section 9.13 hereof; and
(b) the repurchase, redemption, defeasance or other
acquisition or retirement for value of any Junior
Indebtedness or Pari Passu Indebtedness in exchange
for, or out of the Net Cash Proceeds of, a
substantially concurrent issue and sale (other than
to a Subsidiary of the Company) of new Indebtedness
by the Company or any of the Guarantors (such a
16
transaction, a "refinancing"); provided, that any
such new Indebtedness of the Company or any of the
Guarantors (i) shall be in a principal amount that
does not exceed an amount equal to the sum of (A) the
principal amount of the Indebtedness so refinanced
and accrued but unpaid interest thereon less any
discount from the face amount of such Indebtedness to
be refinanced expected to be deducted from the amount
payable to the holders of such Indebtedness in
connection with such refinancing, (B) the amount of
any premium expected to be paid in connection with
such refinancing pursuant to the terms of the Junior
Indebtedness or Pari Passu Indebtedness refinanced or
the amount of any premium reasonably determined by
the Company or such Guarantor as necessary to
accomplish such refinancing by means of a tender
offer, privately negotiated repurchase or otherwise
and (C) the amount of legal, accounting, printing and
other similar expenses of the Company incurred in
connection with such refinancing; provided, further,
that for purposes of this clause (i), the principal
amount of any Indebtedness shall be deemed to mean
the principal amount thereof or, if such Indebtedness
provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the
date of determination; (ii) (A) if such refinanced
Indebtedness has an Average Life to Stated Maturity
shorter than that of the Senior Notes or a final
Stated Maturity earlier than the final Stated
Maturity of the Senior Notes, such new Indebtedness
shall have an Average Life to Stated Maturity no
shorter than the Average Life to Stated Maturity of
such refinanced Indebtedness and a final Stated
Maturity no earlier than the final Stated Maturity of
such refinanced Indebtedness or (B) in all other
cases each Stated Maturity of principal (or any
required repurchase, redemption, defeasance or
sinking fund payments) of such new Indebtedness shall
be after the final Stated Maturity of principal of
the Senior Notes; and (iii) is (A) made expressly
subordinated to or pari passu with the Senior Notes
to substantially the same extent as the Indebtedness
being refinanced or (B) expressly subordinate to such
refinanced Indebtedness.
"Permitted Repurchase Facilities" includes purchase and sale facilities
pursuant to which the Company or a Subsidiary sells loans, real estate owned or
other financial assets to a financial institution or other entity and agrees to
repurchase such loans, real estate owned or financial assets.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivisions thereof.
17
"Place of Payment" means the principal office of the Company in
Philadelphia, Pennsylvania, or the office of the Paying Agent as may be
established by the Company and the Trustee.
"Predecessor Senior Note" of any particular Senior Note means every
previous Senior Note evidencing all or a portion of the same debt as that
evidenced by such particular Senior Note; and, for the purposes of this
definition, any Senior Note authenticated and delivered under Section 3.7 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Senior Note
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Senior Note.
"Preferred Stock" means, with respect to any Person, any Capital Stock
of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary liquidation or dissolution of such Person, over Capital Stock of
any other class in such Person.
"Qualified Capital Stock" of any Person means any and all Capital Stock
of such Person other than Disqualified Capital Stock.
"Redemption Date", when used with respect to any Senior 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 Senior Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Period" with regard to any Person means the four full fiscal
quarters of such Person ended on or immediately preceding any date upon which
any determination is to be made pursuant to the terms of the Senior Notes or
this Indenture for which financial information is available.
"Registrar" means the Trustee or its nominee.
"Registration Penalty" has the meaning set forth in the Registration
Rights Agreement.
"Registration Rights Agreement" means one or more Registration Rights
Agreements among the Company, the Guarantors and the other parties thereto, as
such may be amended or modified from time to time, relating to rights given by
the Company to the purchasers of Additional Notes that are Restricted Securities
to register such Senior Notes under the Securities Act.
"Regular Record Date" for the interest (including any Additional
Interest) payable on any Interest Payment Date on the Senior Notes means January
15 or July 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, shall
mean any officer within the corporate trust department (or any successor group
of the Trustee) including any vice president, assistant vice president,
assistant treasurer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
18
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred at the Trustee's Corporate Trust Office because of his
knowledge of and familiarity with the particular subject.
"Restricted Payment" means
(a) the declaration, payment or setting apart of any
funds for the payment of any dividend on, or making
of any distribution to holders of, the Capital Stock
of the Company or any Subsidiary of the Company
(other than (i) dividends or distributions in
Qualified Capital Stock of the Company and (ii)
dividends or distributions payable on or in respect
of any class or series of Capital Stock of a
Subsidiary of the Company as long as the Company
receives at least its pro rata share of such
dividends or distributions in accordance with its
ownership interests in such class or series of
Capital Stock);
(b) the purchase, redemption or other acquisition or
retirement for value, directly or indirectly, of any
Capital Stock of the Company or any Affiliate of the
Company (other than a Wholly-Owned Subsidiary, and
other than the purchase from a non-Affiliate of the
Company of Capital Stock of any joint venture or
other Person which is an Affiliate of the Company
solely because of the Company's direct or indirect
ownership of 20% or more of the Voting Stock of such
joint venture or other Person), except such as shall
constitute a Permitted Payment; or
(c) the making of any principal payments on, or
repurchase, redemption, defeasance, retirement or
other acquisition for value, directly or indirectly,
of any Junior Indebtedness or Pari Passu
Indebtedness, prior to any Stated Maturity of
principal or scheduled redemption or defeasance of,
or any scheduled sinking fund payment on, such Junior
Indebtedness or Pari Passu Indebtedness, except such
as shall constitute a Permitted Payment or as
permitted by Section 9.20.
"Restricted Security" means a Security, unless or until it has been (i)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering it or (ii) distributed to the public
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act; provided that in no case shall a Series B Senior Note issued in
accordance with this Indenture and the terms and provisions of the Registration
Rights Agreement be a Restricted Security.
"SEC" means the Securities and Exchange Commission.
"Securities" or "Senior Notes" means, the Original Senior Notes, the
Series B Senior Notes and the Additional Notes, in each case as amended or
modified from time to time in accordance with the terms hereof, issued under
this Indenture. The Original Senior Notes and the Additional Notes shall be
19
treated as a single class for all purposes under this Indenture, and unless the
context otherwise requires, all references to the "Securities" or "Senior Notes"
shall include the Original Senior Notes and any Additional Notes.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Entity" means any pooling arrangement or entity formed
or originated for the purpose of holding, and/or issuing securities representing
interests in, one or more pools of mortgages, leases, credit card receivables,
home equity loan receivables, automobile loans, leases or installment sales
contracts, other consumer receivables, real estate owned or other financial
assets of the Company or any Subsidiary, and shall include, without limitation,
any partnership, limited liability company, liquidating trust, grantor trust,
owner trust, real estate mortgage investment conduit, real estate investment
trust or collateralized bond obligation.
"Senior Note Register" has the meaning specified in Section 3.6.
"Senior Notes": (See "Securities").
"Series B Senior Notes" means the Series B 12% Senior Notes due 2008
which may be issued pursuant to this Indenture in connection with any offer made
by the Company pursuant to a Registration Rights Agreement to exchange Series B
Senior Notes for Additional Notes that are Restricted Securities.
"Significant Subsidiary" means any Subsidiary of the Company which
accounted for 5% or more of the Consolidated Net Assets of the Company and its
Subsidiaries as of the end of the fiscal quarter preceding the date of
determination for which financial information is available or Consolidated
EBITDA of the Company and its Subsidiaries for the Reference Period.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity" when used with respect to any Indebtedness
(including, without limitation, the Senior Notes) means the dates specified in
the instrument governing such Indebtedness as the fixed dates on which any
principal amount of such Indebtedness is due and payable (including, without
limitation, by reason of any required redemption, purchase, defeasance or
sinking fund payment) and, when used with respect to any installment of interest
on Indebtedness, means the date on which such installment is due and payable.
"Subsidiary" means, with respect to any Person, any corporation of
which more than 50% of the voting power of Voting Stock thereof, and any
partnership, association or other business entity of which more than 50% of the
Capital Stock, is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person or a
combination thereof.
20
"Subsidiary Guarantee" means the Guarantee by each Guarantor of the
Company's payment obligations under this Indenture and the Senior Notes,
executed pursuant to the provisions of this Indenture.
"Successor Company" has the meaning specified in Section 10.1.
"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 this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Senior Notes shall mean the Trustee with respect to the Senior
Notes.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Unsecured Debt Coverage Ratio" means, with respect to any Person for
any period, the ratio of Consolidated EBITDA of such Person for such period to
the Fixed Charges of such Person for such period. In the event that the Company
incurs, assumes, guarantees or redeems any Indebtedness (including any
Indebtedness which constitutes Acquired Indebtedness) subsequent to the
commencement of the period for which the Unsecured Debt Coverage Ratio is being
calculated but prior to the event for which the calculation of the Unsecured
Debt Coverage Ratio is made (the "Calculation Date"), then the Unsecured Debt
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or redemption of Indebtedness, as if the same had occurred
at the beginning of the applicable four-quarter period, including an assumption
of investment returns at the rate equal to the higher of the six-month Treasury
▇▇▇▇ rate or six-month LIBOR at the beginning of such four-quarter period. For
purposes of making the computation referred to above, investments in the equity
of, or other acquisitions or dispositions, which constitute all or substantially
all of an operating unit of a business and discontinued operations (as
determined in accordance with GAAP) that have been made by the Company or any of
its Subsidiaries, including all mergers, consolidations and dispositions, during
the four-quarter reference period or subsequent to such reference period and on
or prior to the Calculation Date shall be calculated on a pro forma basis
assuming that all such investments, acquisitions, dispositions, discontinued
operations, mergers and consolidations (and the reduction of any associated
fixed charge obligations and the change in Consolidated EBITDA resulting
therefrom) had occurred on the first day of the four-quarter period. If since
the beginning of such period any Person (that subsequently became a Subsidiary
or was merged with or into the Company or any Subsidiary since the beginning of
such period) shall have made any investment in the equity of, or other
acquisition or disposition, which constitutes all or substantially all of an
operating unit of a business, discontinued operation, merger or consolidation
21
that would have required adjustment pursuant to this definition, then the
Unsecured Debt Coverage Ratio shall be calculated giving pro forma effect
thereto for such period as if such investment, acquisition, disposition,
discontinued operation, merger or consolidation had occurred at the beginning of
the applicable four-quarter period. For purposes of this definition, whenever
pro forma effect is to be given to a transaction, the pro forma calculations
shall be made in good faith by a responsible financial or accounting officer of
the Company. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the Calculation Date had been the applicable rate for
the entire period. Interest on a Capital Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by a responsible financial or
accounting officer of the Company to be the rate of interest implicit in such
Capital Lease Obligation in accordance with GAAP. Interest on Indebtedness that
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a reoccurrence interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Company may designate.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president (but shall not include any assistant vice president),
whether or not designated by a number or a word or words added before or after
the title "vice president".
"Voting Stock" means Capital Stock of the class or classes of which the
holders have (i) in respect of a corporation, the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of such corporation (irrespective of whether or not at the
time Capital Stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency) or (ii) in respect of a
partnership, the general voting power under ordinary circumstances to elect the
board of directors or other governing board of such partnership or of the Person
which is a general partner of such partnership.
"Wachovia Facility": (See "Consolidated Interest Expense").
"Wholly-Owned Subsidiary" means a Subsidiary all of the Capital Stock
of which (other than directors' qualifying shares) is owned by the Company or
another Wholly-Owned Subsidiary.
SECTION 1.2 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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by officers of the Company, or an Opinion
22
of Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion (other than the Officers' Certificate
delivered under Section 9.4 hereof) with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(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 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders; Record Dates.
23
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such
action shall become effective upon action by the
requisite percentage of Holders when such instrument
or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the
Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the
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
6.1) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section.
Without limiting the generality of the foregoing, a
Holder, including a Depositary that is a Holder of a
Global Senior Note, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted
in this Indenture to be made, given or taken by
Holders, and a Depositary that is a Holder of a
Global Senior Note may provide its proxy or proxies
to the beneficial owners of interest in any such
Global Senior Note.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a
certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such
instrument or writing acknowledged to him the
execution thereof.
Where such execution is by a signer acting in a
capacity other than his individual capacity, such
certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing,
or the authority of the Person executing the same,
may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record
date for the purpose of determining the Holders of
Senior Notes entitled to give or take any request,
demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by
Holders of Senior Notes. If not set by the Company
24
prior to the first solicitation of a Holder of Senior
Notes made by any Person in respect of any such
action, or, in the case of any such vote, prior to
such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be
provided pursuant to Section 7.1) prior to such first
solicitation or vote, as the case may be. With regard
to any record date for action to be taken by the
Holders Senior Notes, only the Holders of Senior
Notes on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Senior Notes shall be proved by the
Senior Note Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of
any Senior Note shall bind every future Holder of the
same Senior Note and the Holder of every Senior 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
Senior Note.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with
regard to any particular Senior Note may do so with
regard to all or any part of the principal amount of
such Senior Note or by one or more duly appointed
agents each of which may do so pursuant to such
appointment with regard to all or any different part
of such principal amount.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Except as otherwise expressly provided herein, any request, demand,
authorization, direction, notice, consent, waiver or Act of 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, Attention:
Corporate Trust Trustee Administration, or
(2) the Company or any Guarantor 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 or such Guarantor
addressed to it at the address of the Company's
principal office specified in the first paragraph of
this instrument or at any other address previously
25
furnished in writing to the Trustee by the Company,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to 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 affected
by such event, at his address as it appears in the Senior Note Register, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice. In any case where notice to
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 Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
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 a sufficient notification for every purpose hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.8 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 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company or any
Guarantor shall bind its respective successors and assigns, whether so expressed
or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Senior 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.
26
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture, the Senior Notes or the Subsidiary
Guarantees, express or implied, shall give to any Person, other than (a) the
parties hereto and their successors hereunder and (b) the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law; Choice of Forum.
(a) This Indenture and the Senior Notes will be governed
by, and construed in accordance with, the laws of the
State of New York without giving effect to applicable
principles of conflicts of law to the extent that the
application of the law of another jurisdiction would
be required thereby.
(b) The Company and each of the Guarantors hereby
irrevocably submits to the jurisdiction of any New
York State Court sitting in the Borough of Manhattan
in the City of New York or any federal court sitting
in the Borough of Manhattan in the City of New York
in respect of any suit, action or proceeding arising
out of or relating to this Indenture and the Senior
Notes, and irrevocably accepts for itself and in
respect of its property, generally and
unconditionally, jurisdiction of the aforesaid
courts. The Company and each of the Guarantors
irrevocably waives, to the fullest extent it may
effectively do so under applicable law, any objection
which it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding
brought in any such court and any claim that any such
suit, action or proceeding brought in any such court
has been brought in an inconvenient forum.
(c) The Company and each of the Guarantors hereby
irrevocably appoints CT Corporation System (the
"Process Agent," which has consented thereto) with
offices on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as Process Agent to receive for
and on behalf of its service process in the County of
New York relating to this Indenture, and the Senior
Notes and the Subsidiary Guarantees. SERVICE OF
PROCESS IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE
COMPANY OR ANY OF THE GUARANTORS MAY BE MADE ON THE
PROCESS AGENT BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER APPLICABLE LAWS IN EFFECT IN THE
STATE OF NEW YORK, AND THE PROCESS AGENT IS HEREBY
AUTHORIZED AND DIRECTED TO ACCEPT SUCH SERVICE FOR
AND ON BEHALF OF THE COMPANY OR ANY OF THE GUARANTORS
AND TO ADMIT SERVICE WITH RESPECT THERETO. SUCH
27
SERVICE UPON THE PROCESS AGENT SHALL BE DEEMED
EFFECTIVE PERSONAL SERVICE ON THE COMPANY OR SUCH
GUARANTOR, SUFFICIENT FOR PERSONAL JURISDICTION, 10
DAYS AFTER MAILING, AND SHALL BE LEGAL AND BINDING
UPON THE COMPANY OR SUCH GUARANTOR FOR ALL PURPOSES,
NOTWITHSTANDING ANY FAILURE OF THE PROCESS AGENT TO
MAIL COPIES OF SUCH LEGAL PROCESS TO IT OR ANY
FAILURE ON THE PART OF IT TO RECEIVE THE SAME. The
Company and each of the Guarantors confirms that it
has instructed the Process Agent to mail to it, upon
service of process being made on the Process Agent
pursuant to this Section, a copy of the summons and
complaint or other legal process served upon it, by
registered mail, return receipt requested, at the
Company's address set forth in the first paragraph of
this instrument, or to such other address as the
Company and each of the Guarantors may notify the
Process Agent in writing. The Company and each of the
Guarantors agrees that it will at all times maintain
a process agent to receive service of process in the
County of New York on its behalf with respect to this
Indenture, and the Senior Notes and the Subsidiary
Guarantees. If for any reason the Process Agent or
any successor thereto shall no longer serve as such
process agent or shall have changed its address
without notification thereof to the Trustee, the
Company and each of the Guarantors, immediately after
gaining knowledge thereof, irrevocably shall appoint
a substitute process agent acceptable to the Trustee
in the County of New York and advise the Trustee
thereof or notify the Trustee of the new address,
respectively.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE
OR ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY OR ANY OR THE
GUARANTORS IN ANY OTHER JURISDICTION.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Senior Note shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Senior
Notes (other than a provision of the Senior Notes which specifically states that
such provision shall apply in lieu of this Section)) payment of interest
(including any Additional Interest) or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
28
Maturity, provided that no interest shall accrue with respect to such payment
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
29
ARTICLE TWO SENIOR NOTE FORMS
SECTION 2.1 Forms Generally.
The Senior Notes shall be in substantially the form 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 Senior Notes, as evidenced by their execution of the
Senior Notes.
The definitive Senior Notes shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Senior Notes, as
evidenced by their execution of such Senior Notes.
SECTION 2.2 Form of Face of Senior Note.
[If the Security is a Restricted Security, then insert] THE NOTE
EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE OR UNLESS A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT IS IN EFFECT WITH RESPECT TO THIS NOTE. BY ITS
ACQUISITION HEREBY (BUT SUBJECT TO CERTAIN RIGHTS TO REQUIRE REGISTRATION OF THE
NOTES), THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 UNDER THE SECURITIES ACT)
("ACCREDITED INVESTOR"); (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY RESELL OR OTHERWISE TRANSFER THE
NOTE EVIDENCED HEREBY EXCEPT IN A TRANSACTION NOT REQUIRING REGISTRATION UNDER
THE SECURITIES ACT (A) TO THE COMPANY, OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO
THE TRUSTEE UNDER THE INDENTURE RELATING TO THIS NOTE (THE "TRUSTEE") A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTION ON TRANSFER OF THE NOTES EVIDENCED HEREBY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM REGISTRATION REQUIREMENTS OF THE SECURITIES ACT INCLUDING THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE); AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN CONNECTION WITH ANY TRANSFER OF
30
THE NOTE EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH
NOTE. IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
[All Securities, including Series B Senior Notes, shall be in
substantially the following form] NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD
THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR
84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS
SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET
ENTITY AND IS NOT PURCHASING THIS SECURITY ON BEHALF OF OR WITH "PLAN ASSETS" OF
ANY PLAN OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23,
95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING.
31
RESOURCE AMERICA, INC.
12% Senior Notes Due August 1, 2008
No____________ $___________
CUSIP No. ____________
Resource America, Inc., a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
Successor Company under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ____________________, or registered assigns,
the principal sum of ___________ Dollars on August 1, 2008, and to pay interest
thereon from ______, 2003 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on
February 1 and August 1 in each year, commencing August 1, 2003, at the rate of
12% per annum, plus Additional Interest, if any, until the principal hereof is
paid or made available for payment, and at the rate of 1% over the rate set
forth above per annum on any overdue principal and (to the extent that the
payment of such interest shall be legally enforceable) on any overdue
installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Senior Note (or one or more Predecessor
Senior Notes) is registered at the close of business on the Regular Record Date
for such interest, which shall be January 15 or July 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest (including any Additional Interest) not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Senior Note (or one or more Predecessor Senior 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 Holders of Senior
Notes 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 requirements of any
securities exchange on which the Senior Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture. Interest on the Senior Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
The principal of, and premium, if any, and interest including
Additional Interest, if any, on the Senior Notes shall be payable at the
principal office of the Company in Philadelphia, Pennsylvania or at the office
of the Paying Agent as may be established by the Company and the Trustee (herein
called the "Place of Payment"; initially the Place of Payment shall be the
principal corporate trust office of the Trustee in New York, New York). All such
payments shall be made in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company, payment of interest
may be made (subject to collection) by check mailed to the address of the Person
entitled thereto at such address as shall appear on the Note Register or by wire
transfer in immediately available funds to the accounts designated by the Person
entitled thereto in writing in form satisfactory to the Trustee at least fifteen
(15) days prior to the date of such payment.
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Reference is hereby made to the further provisions of this Senior 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
the Trustee referred to on the reverse hereof by manual signature, this Senior
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 instrument to be duly
executed under its corporate seal.
RESOURCE AMERICA, INC.
By: _____________________________
Attest:
--------------------------------
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SECTION 2.3 Form of Reverse of Senior Note.
This Senior Note is one of a duly authorized issue of the Company
(herein called the "Senior Notes"), issued under an Indenture, dated as of
April 10, 2003 (herein called the "Indenture"), between the Company, the
Guarantors and The Bank of New York as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantors, the Trustee and the Holders of the
Senior Notes and of the terms upon which the Senior Notes are, and are to be,
authenticated and delivered.
The Senior Notes may not be redeemed prior to August 1, 2006 except as
set forth herein. On or after such date, the Senior Notes may be redeemed upon
not less than 30 days' and not more than 60 days' notice by mail, at any time on
or after August 1, 2006, as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount):
Redemption
Year Price
---- ----------
2006 106%
2007 103%
together in the case of any such redemption with accrued and unpaid interest
(including any Additional Interest) to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Senior Notes, or one or more Predecessor
Senior Notes, of record at the close of business on the relevant Regular Record
Dates referred to on the face hereof, all as provided in the Indenture.
In the event of redemption of this Senior Note in part only, a new
Senior Note or Senior Notes of like tenor for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
Upon a Change of Control Event, the Holder of this Senior Note will
have the right to cause the Company to repurchase all or any part of this Senior
Note at a repurchase price equal to 101% of the principal amount of this Senior
Note plus accrued interest (including any Additional Interest) to the date of
purchase (subject to the right of the Holders on the relevant Regular Record
Date to receive interest due on the relevant Interest Payment Date) as provided
in, and subject to the terms of, the Indenture.
If the Company or a Subsidiary (other than any of the Atlas Pipeline
Entities) consummates any Asset Sales, within five days of each date on which
the aggregate amount of Excess Proceeds exceeds $20.0 million the Company shall
commence an offer to all Holders of Notes and all holders of other Pari Passu
Indebtedness containing provisions similar to those set forth in the Indenture
with respect to offers to purchase or redeem with the proceeds of sales of
assets to purchase the maximum principal amount of Notes and such Pari Passu
Indebtedness that may be purchased out of the Excess Proceeds at an offer price
in cash in an amount equal to 100% of principal amount plus accrued and unpaid
34
interest and Additional Interest, if any, to the date of purchase. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
those Excess Proceeds for any purpose not otherwise prohibited by the Indenture.
If the aggregate principal amount of Notes and Pari Passu Indebtedness tendered
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and Pari Passu Indebtedness to be purchased on a pro rata
basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds
shall be reset at zero. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Senior
Notes.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness evidenced by this Senior Note and (b) certain restrictive
covenants, in each case upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Senior Note.
If an Event of Default with respect to Senior Notes shall occur and be
continuing, the principal of the Senior Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
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 Guarantors and the rights of the Holders of the Senior Notes at
any time by the Company, the Guarantors and the Trustee with the consent of the
Holders of a majority in principal amount of the Senior Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Senior Notes at the time
Outstanding, on behalf of the Holders of all Senior Notes, to waive certain past
defaults under the Indenture and their consequences. Any such consent or waiver
shall be conclusive and binding upon the Holder of this Senior Note and upon all
future Holders of this Senior Note and of any Senior Note issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Senior Note.
No reference herein to the Indenture and no provision of this Senior
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest (including any Additional Interest) on this Senior Note at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Senior Note is registrable in the Senior Note
Register, upon surrender of this Senior Note for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest (including any Additional Interest) on this Senior Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Senior Note Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
35
or more new Senior Notes of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Senior Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
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 Senior 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 Senior Note is registered as the owner
hereof for all purposes, whether or not this Senior Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Senior Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and the Senior Notes will be governed by, and construed
in accordance with, the laws of the State of New York without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required.
SECTION 2.4 Form of Legend for Global Senior Notes.
Any Global Senior Note authenticated and delivered hereunder shall bear
a legend in substantially the following form:
"This Senior Note is a Global Senior Note within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Senior Note may not be transferred to, or registered
or exchanged for Senior Notes registered in the name of, any Person other than
the Depositary or a nominee thereof or a successor of such Depositary or a
nominee of such successor and no such transfer may be registered, except in the
limited circumstances described in the Indenture. Every Senior Note
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Senior Note shall be a Global Senior Note subject to the
foregoing, except in such limited circumstances."
SECTION 2.5 Legending of the Securities; Restrictions on Transfers.
Until such time as the same is no longer a Restricted Security, each
certificate evidencing the Securities (and all Securities issued in exchange
therefor or substitution thereof) shall bear a legend in substantially the form
set forth on the form of Senior Note set forth at Section 2.2. Prior to any
transfer or exchange of a legended Security for another Security, the Company
shall deliver an Officers' Certificate to the Trustee directing it to transfer
or exchange such Security for another legended or unlegended Security, subject
to compliance with any transfer restrictions.
36
SECTION 2.6 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form: This is one of the Senior Notes designated and referred to
in the within-mentioned Indenture.
The Bank of New York, as Trustee
Dated: ___________________ By: ______________________________
Authorized Signatory
SECTION 2.7 Form of Assignment and Election to Purchase.
Each Senior Note shall include the following form of Assignment and
Option of Holder to Elect Purchase:
ASSIGNMENT
(To be executed by the registered Holder if such Holder desires to transfer this
Senior Note)
FOR VALUE RECEIVED _____________ hereby sells, assigns and transfers unto
________________________.
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF TRANSFEREE
(Please print name and address of transferee)
this Senior Note, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint ___________________ Attorney to
transfer this Senior Note on the Senior Note Register, with full power of
substitution.
Dated: __________________________________
Signature
of Holder: ____________________________
Signature
Guaranteed: ___________________________
NOTICE: The signature to the foregoing Assignment must correspond to the name
as written upon the face of this Senior Note in every particular,
without alteration or any change whatsoever.
37
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 9.17 or 9.20 of the Indenture, check the appropriate box
below:
[ ] Section 9.17 [ ] Section 9.20
Indicate the amount of this Senior Note you wish to have purchased by
checking the appropriate box below.
[ ] entire principal amount [ ] $___________ (must be $1,000 in
principal amount or integral multiple
thereof)
Dated: __________________________________
Signature
of Holder: ____________________________
Signature
Guaranteed: ___________________________
NOTICE: The signature to the foregoing must correspond to the name as written
upon the face of this Senior Note in every particular, without
alteration or any change whatsoever.
38
ARTICLE THREE THE SENIOR NOTES
SECTION 3.1 Global Senior Note; Depositary.
Any Senior Notes issued in the form of one or more Global Senior Notes
will be deposited with The Depository Trust Company or any successor thereto
(the "Depositary"), or the Trustee on its behalf, and registered in the name of
the Depositary's nominee, as nominee of the Depositary (such nominee being
referred to herein as the "Global Senior Note Holder").
SECTION 3.2 Reserved.
SECTION 3.3 Denominations
The Senior Notes shall be issuable in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
SECTION 3.4 Execution, Authentication, Delivery and Dating.
The Senior Notes shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents, under its corporate seal,
if any, reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Senior Notes and the
corporate seal may be manual or facsimile.
Senior 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 Senior Notes or did not
hold such offices at the date of such Senior Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Senior Notes executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Senior Notes, and the Trustee in accordance
with the Company Order shall authenticate and make such Senior Notes available
for delivery.
Each Senior Note shall be dated the date of its authentication.
No Senior Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Senior Note
a certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature of an
authorized signatory of the Trustee or an Authenticating Agent, and such
certificate upon any Senior Note shall be conclusive evidence, and the only
evidence, that such Senior Note has been duly authenticated and delivered
hereunder.
Notwithstanding the foregoing, if any Senior Note shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Senior Note to the Trustee for cancellation
39
as provided in Section 3.10, for all purposes of this Indenture such Senior Note
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.5 Temporary Senior Notes.
Pending the preparation of definitive Senior Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Senior Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Senior Notes in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Senior Notes may determine, as
evidenced by their execution of such Senior Notes.
If temporary Senior Notes are issued, the Company will cause definitive
Senior Notes to be prepared without unreasonable delay. After the preparation of
definitive Senior Notes, the temporary Senior Notes shall be exchangeable for
definitive Senior Notes upon surrender of the temporary Senior Notes at the
office or agency of the Company in a Place of Payment, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Senior
Notes the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor one or more definitive Senior Notes
of any authorized denominations and of a like aggregate principal amount and
tenor. Until so exchanged the temporary Senior Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Senior Notes of
such tenor.
SECTION 3.6 Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office being herein sometimes
collectively referred to as the "Senior Note Register"), in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Senior Notes and of transfers of Senior Notes. The Trustee
is hereby appointed "Senior Note Registrar" for the purpose of registering
Senior Notes and transfers of Senior Notes as herein provided.
Upon surrender for registration of transfer of any Senior Note at the
office or agency in a Place of Payment, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Senior Notes of any
authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Senior Notes may be exchanged for other
Senior Notes of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Senior Notes to be exchanged at such
office or agency.
Whenever any Senior Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Senior Notes which the Holder making the exchange is entitled to
receive.
40
All Senior Notes issued upon any registration of transfer or exchange
of Senior Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Senior
Notes surrendered upon such registration of transfer or exchange.
Every Senior Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Senior Note Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Senior 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 Senior Notes, other
than exchanges pursuant to Section 3.5, 9.17 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Senior Notes during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Senior Notes
selected for redemption under Section 11.3 and ending at the close of business
on the day of such mailing or (ii) to register the transfer of or exchange any
Senior Note so selected for redemption in whole or in part, except the
unredeemed portion of any Senior Note being redeemed in part.
Any Additional Notes which are presented to the Registrar for exchange
pursuant to an Exchange Offer shall be exchanged for Series B Senior Notes of
equal principal amount upon surrender to the Registrar of the Additional Notes
to be exchanged; provided, however, that the Additional Notes surrendered for
exchange in an Exchange Offer shall be duly endorsed and accompanied by a letter
of transmittal or written instrument of transfer in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Holder thereof or
his attorney who shall be duly authorized in writing to execute such document.
Whenever any Additional Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall, upon Company Order, authenticate and make
available for delivery to the Registrar, the same aggregate principal amount of
Series B Senior Notes as the aggregate principal amount of Additional Notes that
have been surrendered.
Notwithstanding any other provisions hereof, no Additional Note may be
exchanged by the Holder thereof for a Series B Senior Note other than pursuant
to an Exchange Offer and no Series B Senior Note may be exchanged by the Holder
thereof for an Additional Note.
Each Holder of a Senior Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Senior Note in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
41
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 3.7 Mutilated, Destroyed, Lost and Stolen Senior Notes.
If any mutilated Senior Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Senior Note of like 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 Senior Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Senior Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Note, a
new Senior Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Senior Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Senior Note, pay such Senior Note.
Upon the issuance of any new Senior 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 Senior Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Senior Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Senior 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 Senior Notes duly issued hereunder.
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 Senior Notes.
SECTION 3.8 Payment of Interest; Interest Rights Preserved.
Interest (including any Additional Interest) on any Senior 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 Senior Note (or one or more
Predecessor Senior Notes) is registered at the close of business on the Regular
42
Record Date for such interest. All payments of interest (including any
Additional Interest) on any Senior Notes shall be made by the Company in
immediately available funds; provided, however, that should, in accordance with
the terms of the Indenture, interest (including any Additional Interest) on the
Senior Notes not be paid in immediately available funds, such payment may be
paid by check drawn on a bank in The City of New York and mailed to the address
of the Person entitled thereto as such address shall appear in the Senior Note
Register.
Any interest (including any Additional Interest) on any Senior 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 may be paid by the Company,
at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Senior Notes (or their respective Predecessor Senior
Notes) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Senior 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 7 days prior to
the date of the proposed payment and not less than 7
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 of Senior Notes at its address as it
appears in the Senior Note Register, not less than 10
days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons
in whose names the Senior Notes (or their respective
Predecessor Senior Notes) are registered at the close
of business on such Special Record Date and shall no
longer be payable pursuant to the following clause
(2).
43
(2) The Company may make payment of any Defaulted
Interest on the Senior Notes in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Senior Notes may be
listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Senior Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Senior Note shall carry the rights to interest
(including any Additional Interest) accrued and unpaid, and to accrue, which
were carried by such other Senior Note.
SECTION 3.9 Persons Deemed Owners.
Prior to due presentment of a Senior Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Senior Note is registered as the owner of such
Senior Note for the purpose of receiving payment of principal of and any premium
and (subject to Section 3.8) any interest (including any Additional Interest) on
such Senior Note and for all other purposes whatsoever, whether or not such
Senior 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.
So long as the Global Senior Note Holder is the registered owner of any
Senior Notes, the Global Senior Note Holder will be considered the sole Holder
under this Indenture of any Senior Notes evidenced by the Global Senior Note for
the purposes of receiving payment on the Senior Notes, receiving notices, and
for all other purposes under this Indenture and the Senior Notes. Beneficial
owners of Senior Notes evidenced by the Global Senior Note will not be
considered the owners or Holders thereof under this Indenture for any purpose,
including with respect to the giving of any directions, instructions or
approvals to the Trustee thereunder. Neither the Company nor the Trustee will
have any responsibility or liability for any aspect of the records of the
Depositary or for maintaining, supervising or reviewing any records of the
Depositary relating to the Senior Notes.
SECTION 3.10 Cancellation.
All Senior Notes surrendered for payment, redemption or registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
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 Senior Notes
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Senior Notes
previously authenticated hereunder which the Company has not issued and sold,
and all Senior Notes so delivered shall be promptly canceled by the Trustee. No
Senior Notes shall be authenticated in lieu of or in exchange for any Senior
Notes canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Senior Notes held by the Trustee shall be promptly
returned to the Company.
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SECTION 3.11 Computation of Interest.
Interest on the Senior Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 3.12 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption or other related material as a convenience to Holders; provided
that any such notice or other related material may state that no representation
is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or other related material
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company shall promptly notify the Trustee of
any change in the "CUSIP" numbers.
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ARTICLE FOUR BOOK-ENTRY PROVISIONS FOR GLOBAL SENIOR NOTES
SECTION 4.1 Applicability of Article.
Each Global Senior Note shall be subject to this Article Four.
SECTION 4.2 Book-Entry Provisions For Global Senior Note.
(a) Members of, or participants in, the Depositary
("Agent Members") shall have no rights under this
Indenture with respect to any Global Senior Note held
on their behalf by the Depositary or under the Global
Senior Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner of the Global
Senior Note for all purposes whatsoever. Any Holder
of the Global Senior Note shall, by acceptance of
such Global Senior Note, agree that the transfers of
beneficial interests in such Global Senior Note may
be effected only through a book-entry system
maintained by the Depositary (or its agent), and that
ownership of a beneficial interest in the Global
Senior Note shall be required to be reflected in a
book-entry system. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee
or an agent of the Company or the Trustee from giving
effect to any written certification, proxy or other
authorization furnished by the Depositary or impair,
as between the Depositary and its Agent Members, the
operation of customary practices governing the
exercise of the rights of a Holder of any Senior
Note.
(b) Notwithstanding any other provision of this Section,
unless and until it is exchanged in whole or in part
for individual Senior Notes represented thereby, a
Global Senior Note representing all or a portion of
the Senior Notes may not be transferred except as a
whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
Interests of beneficial owners in the Global Senior
Notes (each an "Interest") may be transferred to one
beneficial owner or to another Agent Member or
exchanged for definitive Senior Notes in accordance
with the rules and procedures of the Depositary and
the provisions of this Indenture. In addition,
definitive Senior Notes shall be transferred to all
beneficial owners in exchange for their beneficial
interests in Global Senior Notes if (i) the
Depositary for the Senior Notes notifies the Company
that the Depositary is unwilling or unable to
continue as Depositary for the Global Senior Notes or
is no longer eligible to serve as Depositary pursuant
46
to the terms of this Indenture and a successor
Depositary is not appointed by the Company within 90
days after delivery of such notice; (ii) the Company,
at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of
definitive Senior Notes under this Indenture; or
(iii) there shall have occurred and be continuing a
Default or an Event of Default with respect to any
Senior Notes represented by the Global Senior Notes;
and the Trustee shall, upon receipt of a Company
Order in accordance with Section 3.4, authenticate
and make available for delivery, definitive Senior
Notes in an aggregate principal amount equal to the
principal amount of the Global Senior Notes in
exchange for such Global Senior Notes. If specified
by the Company pursuant to Section 3.4, the
Depositary may surrender a Global Senior Note in
exchange in whole or in part for Senior Notes of like
tenor and terms and in definitive form on such terms
as are acceptable to the Company, the Trustee and the
Depositary.
(c) In connection with the transfer of Global Senior
Notes to beneficial owners pursuant to the third
sentence of paragraph (b) of this Section, the Global
Senior Notes shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall
execute and the Trustee upon receipt of a Company
Order for the authentication and delivery of
definitive Senior Notes shall authenticate and make
available for delivery, without service charge:
(i) to the Depositary or to each Person
specified by such Depositary a new Senior
Note or Senior Notes of like tenor and terms
and of any authorized denomination as
requested by such Person in aggregate
principal amount equal to and in exchange
for such Person's beneficial interest in the
Global Senior Note; and
(ii) to such Depositary a new Global Senior Note
of like tenor and terms and in an authorized
denomination equal to the difference, if
any, between the principal amount of the
surrendered Global Senior Note and the
aggregate principal amount of Senior Notes
delivered to Holders thereof.
Notwithstanding any other provision of this
Indenture, any Senior Note authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Global Senior Note
shall also be a Global Senior Note and shall bear the
legend specified in Section 2.4 except for any Senior
Note authenticated and delivered in exchange for, or
upon registration of transfer of, a Global Senior
Note pursuant to the preceding sentence.
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(d) The Holder of any Global Senior Note may grant
proxies and otherwise authorize any person, including
Agent Members and persons that may hold interests
through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or
the Senior Notes.
(e) Upon the exchange of a Global Senior Note in its
entirety for Senior Notes in definitive form, such
Global Senior Note shall be canceled by the Trustee.
(f) Notwithstanding anything herein to the contrary, if
at any time the Depositary for the Senior Notes
notifies the Company that it is unwilling or unable
to continue as a Depositary for the Senior Notes or
if at any time the Depositary for the Senior Notes
shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute
or regulation, the Company shall appoint a successor
Depositary with respect to the Senior Notes. If a
successor Depositary for the Senior Notes is not
appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such
condition, the Company will execute, and the Trustee,
upon Company Request, will authenticate and make
available for delivery Senior Notes in definitive
form in an aggregate principal amount equal to the
principal amount of the Global Senior Note or Global
Senior Notes representing Senior Notes in exchange
for such Global Senior Note or Global Senior Notes.
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ARTICLE FIVE REMEDIES
SECTION 5.1 Events of Default.
An "Event of Default" as used herein is any one of the following:
(a) failure by the Company to pay interest (including any
Additional Interest) on any Senior Note when due and
payable, if such failure continues for a period of 30
days;
(b) failure by the Company to pay principal on any Senior
Note when due and payable at Stated Maturity or upon
redemption, acceleration or otherwise;
(c) failure by the Company to comply with any other
agreement or covenant contained in this Indenture
(other than a default specified in clause (a) or (b)
above) if such failure continues for a period of 30
days after notice to the Company by the Trustee or to
the Company and the Trustee by the Holders of at
least 25% in principal amount of the Senior Notes
then Outstanding;
(d) Indebtedness of the Company or any Subsidiary of the
Company is not paid within any applicable grace
period after final maturity or in the event that
final maturity is accelerated because of a default
and, in either case, where the aggregate principal
amount of such Indebtedness so unpaid or accelerated
is equal to or greater than 5% of the Company's
Consolidated Net Worth at the quarter end preceding
the end of such grace period or such acceleration;
(e) any Subsidiary Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases
for any reason to be in full force and effect or any
Guarantor denies or disaffirms its obligations under
its Subsidiary Guarantee;
(f) existence of one or more judgments against the
Company or any of its Subsidiaries, which remain
undischarged 60 days after all rights to directly
review such judgment, whether by appeal or writ, have
been exhausted or have expired, in excess, either
individually or in the aggregate, of 5% of the
Company's Consolidated Net Worth as of the quarter
end preceding the end of such 60-day period; or
(g) a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator (or other similar official)
shall take possession of the Company or any
Significant Subsidiary or any substantial part of the
property of the Company or any Significant Subsidiary
without the consent of the Company or such
Significant Subsidiary, respectively, or a court
having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company
or such Significant Subsidiary in an involuntary case
under any applicable bankruptcy, insolvency,
49
receivership, conservatorship or other similar law
now or hereafter in effect, or appointing a receiver,
liquidator, assignee, trustee, custodian,
conservator, sequestrator (or other similar official)
of the Company or the Significant Subsidiary or for
any substantial part of the property of the Company
or the Significant Subsidiary, or ordering the
winding-up or liquidation of the affairs of the
Company or the Subsidiary, and such decree or order
shall continue unstayed and in effect for a period of
60 consecutive days, or the Company or the
Significant Subsidiary shall commence a voluntary
case under any applicable bankruptcy, insolvency,
receivership, conservatorship or other similar law
now or hereafter in effect, or shall consent to the
entry of an order for relief in an involuntary case
under any such law, or shall consent to the
appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian,
conservator, sequestrator (or other similar official)
of the Company or the Significant Subsidiary or of
any substantial part of the property of the Company
or the Significant Subsidiary, or shall make any
general assignment for the benefit of creditors, or
shall take any corporate action in furtherance of any
of the foregoing.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
clause (g) of Section 5.1) occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Senior Notes may declare the principal amount of all of the Senior
Notes to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount shall become immediately due and payable. If any Event of
Default specified in clause (g) of Section 5.1 occurs, the principal amount of
all of the Senior Notes shall automatically become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration with respect to
Senior Notes has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Senior 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 interest (including any
Additional Interest) on all Senior Notes,
(B) the principal of (and premium, if any, on)
any Senior Notes which have become due
otherwise than by such declaration of
acceleration and any interest (including any
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Additional Interest) thereon at the rate or
rates prescribed therefor in such Senior
Notes,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in
such Senior Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable, expenses,
disbursements and advances of the Trustee's
agents and counsel; and
(2) all Events of Default with respect to Senior Notes,
other than the non-payment of the principal of Senior
Notes which have become due solely by such
declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) Default is made in the payment of any interest
(including any Additional Interest) on any Senior
Note when such interest becomes due and payable and
such Default continues for a period of 30 days, or
(2) Default is made in the payment of the principal of
(or premium, if any, on) any Senior Note at the
Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Senior Notes, the whole amount then due and payable on such
Senior Notes for principal and any premium and interest (including any
Additional Interest) and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any
overdue interest (including any Additional Interest), at the rate or rates
prescribed therefor in such Senior Notes, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable expenses, disbursements and advances of the Trustee's
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may (or, at the
direction of Holders of not less than 25% of the Outstanding Senior Notes
shall), in addition to any other remedies available to it, institute a judicial
proceeding for the collection of the sums so due and unpaid and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon the Senior 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 Senior Notes, wherever
situated.
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If an Event of Default with respect to Senior Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Senior Notes 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 aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Senior Notes), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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 Holders, to pay the reasonable expenses, disbursements
and advances of the Trustee's agents and counsel, and any other amounts due the
Trustee under Section 6.7.
No provision of this Indenture 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 Senior
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; provided, however,
the Trustee may vote on behalf of the Holders for the election of a trustee in
bankruptcy or similar official and may be a member of a creditors' or other
similar committee.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Senior Notes.
All rights of action and claims under this Indenture or the Senior
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Senior 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 expenses, disbursements and
advances of the Trustee's agents and counsel, be for the ratable benefit of the
Holders of the Senior Notes in respect of which such judgment has been
recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee 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 any premium
or interest (including any Additional Interest), upon presentation of the Senior
Notes and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
52
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest (including
any Additional Interest) on the Senior Notes in respect
of which or for the benefit of which such money has
been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable
on such Senior Notes for principal and any premium and
interest (including any Additional Interest),
respectively; and
THIRD: To the Company.
SECTION 5.7 Limitation on Suits.
No Holder of any Senior 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
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with
respect to the Senior Notes;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Senior 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;
(3) such Holder or Holders have offered to the Trustee
reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day
period by the Holders of a majority in principal
amount of the Outstanding Senior Notes;
it being understood and intended that no one or more of such 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 of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Senior Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 3.8)
any interest (including any Additional Interest) on such Senior Note on the
53
Stated Maturity or maturities expressed in such Senior Note (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 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Senior Notes in the last paragraph of
Section 3.7, no right or remedy herein conferred upon or reserved to the Trustee
or to the 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 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Senior
Notes to exercise any right or remedy accruing upon any Default shall impair any
such right or remedy or constitute a waiver of any such Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Senior
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, with respect to the Senior Notes, provided
that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
54
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such
direction, and
(3) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would
involve the Trustee in personal liability.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Senior Notes may on behalf of the Holders of all the Senior Notes
waive any past Default hereunder and its consequences, except a Default:
(1) in the payment of the principal of or any premium or
interest (including any Additional Interest) on any
Senior Note, or
(2) in respect of a covenant or provision hereof which
under Article Eight cannot be modified or amended
without the consent of the Holder of each Outstanding
Senior Note affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
The parties to this Indenture agree, and each Holder of any Senior
Notes by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Senior Notes, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Senior Notes on or after the
Stated Maturity or maturities expressed in such Senior Notes (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.
The Company and each of the Guarantors 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 usury, stay
55
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
and each of the Guarantors (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.
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ARTICLE SIX THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. 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. If an Event of Default occurs (and is not cured), the Trustee, in
the exercise of its power, must use the degree of care of a prudent man in the
conduct of his own affairs. Subject to the requirement in the foregoing
sentence, the Trustee is under no obligation to exercise any of its rights or
powers under this Indenture at the request of any Holder, unless such Holder
shall have offered to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense and then only to the extent required by
the terms of this Indenture. 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
of liability is not reasonably assured to it.
Except during the continuance of an Event of Default, (i) 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 (ii) in the absence of bad faith on
its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture.
The Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts. 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 or a majority in
principal amount of the Outstanding Senior Notes relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust power conferred upon the Trustee, under this Indenture.
SECTION 6.2 Notice of Defaults.
If a Default occurs and is continuing and is actually known to a
Responsible Officer of the Trustee, the Trustee shall mail to each Holder notice
of the Default as to and to the extent provided in the Trust Indenture Act.
Except in the case of a Default in the payment of principal of, premium, if any,
or interest (including any Additional Interest) on any Senior Note, the Trustee
may withhold notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee determines that withholding notice is in the interest of the Holders.
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SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively 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, other evidence of
indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the 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 Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this
Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall be entitled to examine the
books, records and premises of the Company,
personally or by agent or attorney, at the sole cost
58
of the Company and shall incur no liability or
additional liability of any kind by reason of such
inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed
as a duty, and the Trustee shall not be answerable
for other than its negligent action, negligent
omission or its willful misconduct; and
(i) the Trustee shall not be charged with knowledge of
any Event of Default under Section 5 (other than an
Event of Default under Section 5.1(a) or (b) if the
Trustee is also the Paying Agent with respect to the
Senior Notes) hereof unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge
thereof or (2) the Trustee shall have received notice
thereof in accordance with Section 1.5 hereof from
the Company or a Holder.
SECTION 6.4 Not Responsible for Recitals or Issuance of Senior Notes.
The recitals contained herein and in the Senior Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Senior Notes. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Senior Notes or the proceeds thereof.
SECTION 6.5 May Hold Senior Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Senior
Note Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Senior Notes and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent, Senior
Note Registrar or such other agent.
SECTION 6.6 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 6.7 Compensation and Reimbursement.
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The Company and the Guarantors, jointly and severally, agree:
(1) to pay to the Trustee such compensation as from time
to time agreed in writing with the Trustee 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 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 shall be
determined to have been caused by its own negligence
or bad faith or willful misconduct;
(3) to indemnify each of the Trustee or any predecessor
Trustee and their agents for, and to hold them
harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than
taxes based on the income of the Trustee) incurred
without negligence, willful misconduct or bad faith
on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts
hereunder, 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;
(4) to secure the Company's obligations under this
Section, the Trustee shall have a lien prior to the
Senior Notes upon all money or property held or
collected by the Trustee in its capacity as Trustee,
except for such money and property which is held in
trust to pay principal (and premium, if any) or
interest (including any Additional Interest) on
particular Senior Notes;
(5) when the Trustee incurs any expenses or renders any
services after the occurrence of an Event of Default
specified in Section 5.1(g), such expenses and the
compensation for such services are intended to
constitute expenses of administration under the
Bankruptcy Code or any similar federal or state law
for the relief of debtors; and
(6) that the provisions of this Section 6.7 shall survive
the termination of this Indenture or the appointment
of a successor trustee.
SECTION 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
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interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person 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 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance
of appointment by the successor Trustee in accordance
with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to
the Senior Notes by giving written notice thereof to
the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not
have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the
resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to
the Senior Notes.
(c) The Trustee may be removed at any time with respect
to the Senior Notes by Act of the Holders of a
majority in principal amount of the Outstanding
Senior Notes, delivered to the Trustee and to the
Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not
have been delivered to the Trustee within 30 days
after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of
the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect
to the Senior Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 6.8 after written request therefor
by the Company or by any Holder who has been
a bona fide Holder of a Senior Note for at
least six months, or
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(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after
written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its
property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for
the purpose of rehabilitation, conservation
or liquidation, then, in any such case, (i)
the Company by a Board Resolution may remove
the Trustee with respect to the Senior
Notes, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a
Senior Note for at least six months may, on
behalf of himself and all others similarly
situated, petition any court of competent
jurisdiction for the removal of the Trustee
with respect to all Senior Notes and the
appointment of a successor Trustee or
Trustees.
(e) 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 Board Resolution, shall promptly appoint a
successor Trustee and shall comply with the
applicable requirements of Section 6.11. 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
Holders of a majority in principal amount of the
Outstanding Senior Notes delivered to the Company and
the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 6.11, become the successor
Trustee and to that extent supersede the successor
Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company
or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a
bona fide Holder of a Senior Note for at least six
months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a
successor Trustee to all Holders of Senior Notes in
the manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee and the
address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
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and to the retiring Trustee an instrument in writing
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 the request of the
Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute
and deliver an instrument in writing 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.
(b) 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 referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor
Trustee shall be eligible under this Article.
SECTION 6.12 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 such
corporation shall be otherwise 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 Senior 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 Senior Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Senior Notes.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Senior Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents (which may be
an affiliate of the Company) with respect to the Senior Notes which shall be
authorized to act on behalf of the Trustee to authenticate Senior Notes issued
upon exchange, registration of transfer or partial redemption thereof (but not
63
upon original issuance or pursuant to Section 3.7), and Senior 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 Senior 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 $50,000,000 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 said
supervising or examining authority, then 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 all or substantially all 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 Holders of Senior
Notes with respect to which such Authenticating Agent will serve, as their names
and addresses appear in the Senior Note Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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If an appointment is made pursuant to this Section, the Senior Notes
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Senior Notes designated and referred to in the
within mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:___________________________
As Authenticating Agent
By:___________________________
Authorized Signatory
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ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders; Trustee
to Furnish Senior Note Register.
(a) The Company will furnish or cause to be furnished to
the Trustee:
(i) semi-annually, not later than five Business
Days after each Regular Record Date, a list,
in such form as the Trustee may reasonably
require, of the names and addresses of the
Holders of Senior Notes as of such Regular
Record Date, and
(ii) at such other times as the Trustee may
request in writing, within 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 15 days prior to the time
such list is furnished; excluding from any
such list names and addresses received by
the Trustee in its capacity as Senior Note
Registrar.
(b) The Trustee shall furnish to the Company a copy of
the list maintained as the Senior Note Register from
time to time as requested by the Company in writing.
SECTION 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of
Holders contained in the most recent list furnished
to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the
Trustee in its capacity as Senior Note Registrar. The
Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so
furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this
Indenture or under the Senior Notes, and the
corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Senior 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 any disclosure of information as to
names and addresses of Holders made pursuant to the
Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
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(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Trustee shall, within
sixty (60) days after each May 15 following the date
of this Indenture deliver to Holders a brief report,
dated as of such May 15, which complies with the
provisions of such Section 313(a). To the extent that
any such report is required by the Trust Indenture
Act with respect to any 12-month period, such report
shall cover the 12-month period ending March 15 and
shall be transmitted by the next succeeding May 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with
each securities exchange upon which any Senior Notes
are listed, with the SEC and with the Company. The
Company will promptly notify the Trustee when any
Senior Notes are listed on any securities exchange.
SECTION 7.4 Reports by Company.
The Company shall file with the SEC and shall furnish to the Trustee
and the Holders, within 15 days after it files them with the SEC, copies of its
annual report and the information, documents and other reports which the Company
is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. Notwithstanding that the Company may not be required to remain subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall continue to file with the SEC and to provide to the Trustee and
the Holders the annual reports and the information, documents and other reports
which are specified in Section 13 or 15(d) of the Exchange Act and applicable to
a US corporation subject to such sections, such information, documents and other
reports to be filed and provided at the times specified for the filing of such
information, documents and reports under such section. The Company also shall
comply with the other provisions of Section 314(a) of the Trust Indenture Act.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
67
ARTICLE EIGHT AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantors,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto or
amendments of the Subsidiary Guarantees, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the
Company or any Guarantor, and the assumption by any
such successor of the covenants of the Company or
such Guarantor herein and in the Senior Notes;
(b) to provide for uncertificated Senior Notes in
addition to or in place of certificated Senior Notes
(provided, that such uncertificated Senior Notes are
issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the
uncertificated Senior Notes are described in Section
163(f)(2)(B) of the Code);
(c) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or
power conferred upon the Company hereunder and under
the Senior Notes;
(d) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or
inconsistent with any other provision herein or in
the Senior Notes, or to make any other provisions
with respect to matters or questions arising under
this Indenture or under the Senior Notes that shall
not be inconsistent with the provisions of this
Indenture; provided that, in each case, such
provisions shall not adversely affect the interests
of the Holders;
(e) to evidence, and provide for the acceptance of, the
appointment of a successor Trustee hereunder;
(f) to add any additional Events of Default;
(g) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this
Indenture;
(h) to secure the Senior Notes or add a Guarantor; or
(i) to comply with any requirement of the SEC or state
securities regulators in connection with the
qualification of this Indenture under the Trust
Indenture Act or any registration or qualification of
the Senior Notes under the Securities Act or state
securities laws.
SECTION 8.2 Supplemental Indentures with Consent of Holders.
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(a) Except as otherwise provided in Section 8.2(b), with
the written consent of the Holders of a majority in
principal amount of the Outstanding Senior Notes, by
Act of such Holders delivered to the Company and the
Trustee, the Company and any Guarantor, when
authorized by a Board 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 or waiving any
of the provisions of this Indenture or of modifying
in any manner the rights of the Holders under this
Indenture; provided, however, that no such
supplemental indenture shall, without the consent of
the Holder of each Outstanding Senior Note affected
thereby,
(1) change the Stated Maturity of the principal
of, or any installment of interest on, any
Senior Note, or reduce the principal amount
thereof, premium, if any, or the rate of
interest (including any Additional Interest)
thereon, or change the coin or currency in
which the principal of any Senior Note or
any premium or the interest (including any
Additional Interest) thereon is payable, or
impair the right to institute suit for the
enforcement of any such payment after the
Stated Maturity;
(2) reduce the percentage in principal amount of
the Outstanding Senior Notes the consent of
whose Holders is required for any such
amendment or modification, or the consent of
whose Holders is required for any waiver (of
compliance with the provisions of this
Indenture or Defaults hereunder and their
consequences) provided for in this
Indenture;
(3) modify any provision of Section 11.2 or the
definitions used therein if the effect of
such modification or waiver is to decrease
the amount of any payment required to be
made by the Company thereunder or extend the
maturity date of such payment;
(4) modify any of the provisions of this Section
8.2 or Section 5.13 relating to supplemental
indentures requiring the consent of Holders
or relating to the waiver of past Defaults
or relating to the waiver of certain
covenants, 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 Senior Note affected
thereby;
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(5) release any Guarantor from any of its
obligations under its Subsidiary Guarantee
or this Indenture, except in accordance with
the terms of this Indenture;
(6) except as otherwise permitted under the
provisions of Article Ten, consent to the
assignment or transfer by the Company of any
of its rights and obligations under this
Indenture; or
(7) waive a Default in payment with respect to
the Senior Notes (other than a Default in
payment that is due solely because of the
acceleration of the Maturity of the Senior
Notes).
(b) It shall not be necessary for any Act of Holders
under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be
sufficient if such Act and such notice shall approve
the substance thereof.
SECTION 8.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Eight or the modifications
thereby of the trusts created by this Indenture, the Trustee shall receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 8.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Senior Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby and entitled to the benefits thereof.
SECTION 8.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Eight
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 8.6 Reference in Senior Notes to Supplemental Indentures.
Senior Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Eight may, and shall if required
by the Trustee, bear a notation in form acceptable to the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Senior Notes so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
70
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Senior Notes.
SECTION 8.7 Notice of Supplemental Indenture.
After an supplemental indenture hereunder becomes effective, the
Company shall mail to Holders a notice briefly describing such supplemental
indenture; provided, that the failure to give such notice to all Holders, or any
defect therein, will not impair or affect the validity of the supplemental
indenture.
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ARTICLE NINE COVENANTS
SECTION 9.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of (and premium, if any, on) and
interest (including any Additional Interest) on the Senior Notes in accordance
with the terms of the Senior Notes and this Indenture.
The Senior Notes shall be included in the Same-Day Funds Settlement
System or equivalent system of the Depositary until maturity to the extent such
systems are available. Each Global Senior Note will be paid in accordance with
the provisions of Section 4.2 hereof.
SECTION 9.2 Maintenance of Office or Agency.
The Company will maintain an office or agency in a Place of Payment
where Senior Notes may be presented or surrendered for payment and where Senior
Notes may be surrendered for registration of transfer or exchange. Initially,
the Company hereby designates the Corporate Trust Office for all such purposes.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations and surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations and surrenders.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Senior Notes 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 9.3 Money for Senior Notes Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Senior Notes, it will, on or before each due date of the
principal of or any premium or interest (including any Additional Interest) on
any of the Senior Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and any premium
and interest (including any Additional Interest) so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure to act.
Whenever the Company shall have one or more Paying Agents for the
Senior Notes, it will, prior to each due date of the principal of or any premium
or interest (including any Additional Interest) on any Senior Notes, deposit
with a Paying Agent, in immediately available funds, a sum sufficient to pay
72
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure 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 principal
of (and premium, if any) or interest (including any
Additional Interest) on Senior 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 Senior Notes) in the
making of any such payment of principal (and premium,
if any) or interest (including any Additional
Interest); 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; and, 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.
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 any premium or
interest (including any Additional Interest) on any Senior Note and remaining
unclaimed for two years after such principal, premium or interest (including any
Additional Interest) has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Senior 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, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 9.4 Statement by Officers as to Default.
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(a) The Company and each Guarantor (to the extent such
Guarantor is so required under the Trust Indenture
Act) will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company
ending after the date hereof, an Officers'
Certificate (one of the signers of which shall be the
principal executive officer, principal financial
officer or principal accounting officer of the
Company), stating whether or not to the best
knowledge of the signers thereof the Company or such
Guarantor, as appropriate, is, or was during the
preceding year, in Default in the performance and
observance of any of the terms, provisions and
conditions of this Indenture (without regard to any
period of grace or requirement of notice provided
hereunder) and, if the Company or such Guarantor, as
appropriate, shall be or shall have been in Default,
specifying all such Defaults and the nature and
status thereof of which they may have knowledge.
(b) When any Default has occurred and is continuing under
this Indenture, or if the trustee for or the holder
of any other evidence of Indebtedness of the Company
or any Subsidiary gives notice or takes any other
action with respect to a claimed default (other than
with respect to Indebtedness in the principal amount
of less than 5% of the Company's Consolidated Net
Worth at the quarter end preceding the giving of such
notice or taking of such action with respect to a
claimed default), the Company shall deliver to the
Trustee by registered or certified mail, or by
facsimile transmission, confirmed by delivery of the
original, an Officers' Certificate specifying such
event, notice or other action and the action which
the Company proposes to take with respect thereto
within five Business Days of its occurrence.
SECTION 9.5 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which adequate reserves (in the good faith judgment of the
Board of Directors) have been made.
SECTION 9.6 Maintenance of Properties.
The Company will cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
74
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company or any Subsidiary from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the judgment
of its Board of Directors, desirable in the conduct of its business or the
business of the Company or such Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 9.7 Corporate Existence; Keeping of Books.
Subject to Article Ten, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the existence,
rights (charter and statutory) and franchises of the Company and its
Subsidiaries; provided, however, that the existence of any Subsidiary and any
such right or franchise of the Company or any Subsidiary may be terminated if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries and that the loss thereof is not and is not reasonably likely to be
disadvantageous in any material respect to the Holders.
The Company shall keep, and cause each Subsidiary to keep, proper books
and records, in which full and correct entries shall be made of all financial
transactions and the assets, liabilities and business of the Company and its
Subsidiaries, in each case in accordance with GAAP.
SECTION 9.8 Insurance.
The Company will at all times maintain and will cause each of its
Subsidiaries to maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and reputable insurers, insurance
on all its properties in such amounts as management of the Company reasonably
determines is appropriate under the circumstances.
SECTION 9.9 Net Worth Maintenance.
On the Issue Date, and at all times thereafter determined at the end of
each fiscal quarter, the Company shall maintain Consolidated Net Worth equal to
(a) $174.0 million plus (b) a cumulative amount equal to twenty-five percent
(25%) of the Consolidated Net Income (but not loss), if any, of the Company and
its Subsidiaries for each fiscal quarter commencing with the quarter after the
Issue Date less (c) an amount equal to the difference between (x) the principal
amount of Senior Notes Outstanding on the Issue Date and (y) the principal
amount of Senior Notes Outstanding on the last day of the quarter for which the
determination is being made (to a maximum deduction of $50.0 million pursuant to
this clause (c)).
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SECTION 9.10 Limitations on Indebtedness.
(a) Except for the issuance of the Senior Notes on the
Issue Date, the Company shall not incur, directly or
indirectly, any Indebtedness or issue any
Disqualified Capital Stock; provided, however, that
the Company may incur Indebtedness or issue
Disqualified Capital Stock if, on the date of such
incurrence or issuance and after giving effect
thereto, (i) no Default or Event of Default has
occurred and is continuing or would result therefrom
and (ii) the Leverage Ratio does not exceed 2.0 to
1.0.
(b) The Company will not create, incur, issue, assume,
guarantee or otherwise in any manner become directly
or indirectly liable for or with respect to, or
otherwise permit to exist, any Junior Indebtedness or
Pari Passu Indebtedness (other than Acquired
Indebtedness) unless the Stated Maturity of principal
(or any required repurchase, redemption, defeasance
or sinking fund payments) of such Junior Indebtedness
or Pari Passu Indebtedness is after the final Stated
Maturity of principal of the Senior Notes.
(c) The Company will not permit any Subsidiary (other
than the Atlas Pipeline Entities) to, directly or
indirectly, incur any Indebtedness or issue any
Disqualified Capital Stock.
(d) The Company shall not incur any Indebtedness which
would be senior in right of payment to the Senior
Notes.
(e) The foregoing provisions shall not apply to:
(1) Permitted Acquisition Indebtedness of the
Company and its Subsidiaries and Incurrence
by the Company and its Subsidiaries of
Indebtedness under the Wachovia Facility;
(2) Permitted Repurchase Facilities of the
Company and its Subsidiaries;
(3) Guarantees by the Company or any of the
Guarantors of Indebtedness of the Company or
any of its Subsidiaries, other than the
Atlas Pipeline Entities, that was permitted
to be Incurred by another provision of this
Indenture;
(4) Intercompany Indebtedness owed by the
Company to any of its Subsidiaries or owed
by any Subsidiary to the Company;
(5) Incurrence by the Guarantors of their of
obligations under the Subsidiary Guarantees;
(6) Non-Recourse Indebtedness of the Company and
its Subsidiaries;
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(7) Securities issued in a securitization by a
Securitization Entity formed by or on behalf
of the Company or its Subsidiaries,
regardless of whether such securities are
treated as indebtedness for tax purposes,
provided that neither the Company nor any
Subsidiary (other than the Securitization
Entity formed solely for the purpose of such
securitization) is directly or indirectly
liable as a guarantor or otherwise
(excluding the provision of Credit Support)
for such securities or obligations of the
Securitization Entity;
(8) Unsecured working capital loans to
Subsidiaries, not to exceed $5.0 million in
the aggregate, provided, however, that such
Indebtedness shall be considered to be
Indebtedness of the Company for the purpose
of the Leverage Ratio;
(9) Acquired Indebtedness of Subsidiaries,
provided, however, that such Acquired
Indebtedness shall be considered to be
Indebtedness of the Company for the purpose
of the Leverage Ratio;
(10) Indebtedness secured by Permitted Liens;
(11) Hedging Obligations directly related to: (i)
Indebtedness permitted to be incurred by the
Company or its Subsidiaries pursuant to this
Indenture; (ii) loans held by the Company or
its Subsidiaries pending sale; or (iii)
loans with respect to which the Company or
any Subsidiary has an outstanding purchase
offer or commitment, financing commitment or
security interest; or
(12) Indebtedness constituting a refinancing
described in clause (b) of the definition of
Permitted Payment.
(f) For purposes of determining compliance with the
foregoing covenant: (i) in the event that an item of
Indebtedness meets the criteria of more than one of
the types of Indebtedness described above, the
Company, in good faith, will classify such item of
Indebtedness and be required to include the amount
and type of such Indebtedness in one of the above
clauses; and (ii) an item of Indebtedness may be
divided and classified in more than one of the types
of Indebtedness described above.
SECTION 9.11 Reserved.
SECTION 9.12 Liquidity Maintenance.
The Company shall, at all times when the Senior Notes are not rated in
an investment grade category by one or more nationally recognized statistical
77
rating organizations, maintain Liquid Assets with a value equal to at least 100%
of the required interest (including Additional Interest) payments due on the
Senior Notes on the next succeeding semi-annual Interest Payment Date. Liquid
Assets of a Subsidiary may be included in such calculation only to the extent
that such Liquid Assets may at such time be distributed to the Company without
restriction or notice to any Person. Such Liquid Assets shall not be the subject
of any pledge, Lien, encumbrance or charge of any kind and shall not be used as
collateral or security for Indebtedness for borrowed money or otherwise of the
Company or its Subsidiaries nor may such Liquid Assets be used as reserves for
any self-insurance maintained by the Company.
SECTION 9.13 Limitations on Restricted Payments.
The Company will not, and will not permit any Subsidiary to, directly
or indirectly, make any Restricted Payment if, at the time of such Restricted
Payment or after giving effect thereto,
(a) a Default or Event of Default shall have occurred and
be continuing; or
(b) the Company would fail to maintain sufficient Liquid
Assets to comply with the terms of the covenant set
forth in Section 9.12 hereof; or
(c) the aggregate amount of all Restricted Payments (the
amount of such payments, if other than in cash,
having been determined in good faith by the relevant
Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution filed
with the Trustee) declared and made after the Issue
Date would exceed the sum of:
(i) 25% of the aggregate Consolidated Net Income
(or, if such Consolidated Net Income is a
deficit, 100% of such deficit) of the
Company accrued on a cumulative basis during
the period beginning on July 1, 1997 and
ending on the last day of the Company's last
fiscal quarter ending prior to the date of
such proposed Restricted Payment; plus
(ii) the aggregate Net Cash Proceeds received by
the Company as capital contributions (other
than from a Subsidiary) after July 1, 1997;
plus
(iii) the aggregate Net Cash Proceeds and the Fair
Market Value of property not constituting
Net Cash Proceeds received by the Company
from the issuance or sale (other than to a
Subsidiary) of Qualified Capital Stock after
the Issue Date; plus
(iv) 100% of the amount of any Indebtedness of
the Company or a Subsidiary that is issued
after the Issue Date that is thereafter
78
converted into or exchanged for Qualified
Capital Stock of the Company; or
(d) the Unsecured Debt Coverage Ratio for the Company for
the most recently ended four full fiscal quarters for
which internal financial statements are available
immediately preceding the date of such Restricted
Payment is less than 2.00 to 1.00, determined after
giving effect to such Restricted Payment; provided,
however, that the foregoing provisions will not
prevent (y) the payment of a dividend within 60 days
after the date of its declaration if at the date of
declaration such payment was permitted by the
foregoing provisions or (z) any Permitted Payment.
SECTION 9.14 Limitations on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries
(other than a Securitization Entity or an Atlas Pipeline Entity) to, create,
assume or otherwise cause or suffer to exist or to become effective any
consensual encumbrance or restriction on the ability of any such Subsidiary to
(a) pay any dividends or make any other distribution on
its Capital Stock;
(b) make payments in respect of any Indebtedness owed to
the Company or any other Subsidiary; or
(c) make loans or advances to the Company or any
Subsidiary or to guarantee Indebtedness of the
Company or any other Subsidiary;
other than, in the case of (a), (b) and (c),
(1) restrictions imposed by Applicable Law;
(2) restrictions existing under agreements in effect on
the date of this Indenture;
(3) consensual encumbrances or restrictions binding upon
any Person at the time such Person becomes a
Subsidiary of the Company so long as such
encumbrances or restrictions are not created,
incurred or assumed in contemplation of such Person
becoming a Subsidiary;
(4) restrictions with respect to a Subsidiary imposed
pursuant to an agreement entered into for the sale or
disposition of all or substantially all the assets
(which term may include the Capital Stock) of such
Subsidiary;
(5) restrictions on the transfer of assets which are
subject to Liens;
79
(6) restrictions existing under agreements evidencing
Permitted Acquisition Indebtedness or Permitted
Repurchase Facilities of any Subsidiary if such
Indebtedness (i) is made without recourse to, and
with no cross-collateralization (which shall not
include Guarantees), against the assets of, the
Company or any other Subsidiary, and (ii) upon
complete or partial liquidation of which the
Indebtedness must be correspondingly repaid in whole
or in part, as the case may be; and
(7) restrictions existing under any agreement that
renews, extends, increases, refinances or replaces
any of the agreements containing the restrictions in
clauses (2), (3) and (6); provided that the terms and
conditions of any such restrictions (except for
changes in interest rates related to changes in
market rates) are not less favorable to the Holders
than those under the agreement evidencing or relating
to the Indebtedness renewed, extended, increased,
refinanced or replaced.
SECTION 9.15 Limitations on Transactions with Affiliates.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into any transaction or series of related
transactions (including without limitation, the sale, purchase, exchange or
lease of assets, property or services) with any Affiliate of the Company (except
that the Company and any of its Subsidiaries may enter into any transaction or
series of related transactions with any Subsidiary of the Company without
limitation under this covenant) unless: (i) such transactions or series of
related transactions is on terms that are no less favorable to the Company or
such Subsidiary, as the case may be, than would be available in a comparable
transaction in an arm's length dealing with a Person that is not such an
Affiliate or, in the absence of such a comparable transaction, on terms that the
relevant Board of Directors determines in good faith would be offered to a
Person that is not an Affiliate; (ii) with respect to any transaction or series
of related transactions involving aggregate payments in excess of $10,000,000,
the Company delivers an Officers' Certificate to the Trustee certifying that
such transaction or series of transactions complies with clause (i) above and
has been approved by a majority of the Disinterested Directors of the relevant
Board of Directors of the Company or such Subsidiary, as the case may be; and
(iii) with respect to any transaction or series of related transactions
involving aggregate payments in excess of $20,000,000, or in the event that no
members of the Board of Directors are Disinterested Directors with respect to
any transaction or series of transactions included in clause (ii), (x) in the
case of a transaction involving real property, the aggregate rental or sale
price of such real property shall be the fair market sale or rental value of
such real property as determined in a written opinion by a nationally recognized
expert with experience in appraising the terms and conditions of the type of
transaction or series of transactions for which approval is required and (y) in
all other cases, the Company delivers to the Trustee a written opinion of a
nationally recognized expert with experience in appraising the terms and
conditions of the type of transaction or series of transactions for which
approval is required to the effect that the transaction or series of
transactions are fair to the Company or such Subsidiary from a financial point
80
of view. The limitations set forth in this paragraph will not apply to (i)
transactions entered into pursuant to any agreement already in effect on the
Issue Date and any renewals or extensions thereof not involving modifications
materially adverse to the Company or any Subsidiary, (ii) normal banking
relationships with an Affiliate on an arms' length basis, (iii) any employment
agreement, stock option, employee benefit, indemnification, compensation,
business expense reimbursement or other employment-related agreement,
arrangement or plan entered into by the Company or any of its Subsidiaries which
agreement, arrangement or plan was adopted by the Board of Directors of the
Company or such Subsidiary (including a majority of the Disinterested
Directors), as the case may be, (iv) any permitted Restricted Payment or
Permitted Payment, (v) any transaction or series of transactions in which the
total amount involved does not exceed $125,000, or (vi) services rendered and
obligations incurred by the Company or any of its Subsidiaries pursuant to
existing agreements or agreements between the Company and/or any of its
Subsidiaries.
SECTION 9.16 Limitations on Liens and Guarantees.
The Company will not create, assume, incur or suffer to exist any Lien
(other than a Permitted Lien) upon any of the Company's assets (including the
Capital Stock of any Subsidiary) as security for Indebtedness, without
effectively providing that the Senior Notes will be equally and ratably secured
with (or prior to) such Indebtedness.
In addition, the Company will not permit any Subsidiary of the Company,
directly or indirectly, to guarantee or assume, or subject any of its assets to
a Lien (other than a Permitted Lien) to secure, any Pari Passu Indebtedness or
Junior Indebtedness unless (i) such Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture providing for a guarantee
of, or pledge of assets to secure, the Senior Notes by such Subsidiary on terms
at least as favorable to the Holders of the Senior Notes as such guarantee or
security interest in such assets is to the holders of such Pari Passu
Indebtedness or Junior Indebtedness, except that in the event of a guarantee or
security interest in such assets with respect to (x) Pari Passu Indebtedness,
the guarantee or security interest in such assets under the supplemental
indenture shall be made pari passu to the guarantee or security interest in such
assets with respect to such Pari Passu Indebtedness or (y) Junior Indebtedness,
any such guarantee or security interest in such assets with respect to such
Junior Indebtedness shall be subordinated to such Subsidiary's guarantee or
security interest in such assets with respect to the Senior Notes to the same
extent as such Junior Indebtedness is subordinated to the Senior Notes and (ii)
such Subsidiary waives and will not in any manner whatsoever claim, or take the
benefit or advantage of, any rights of reimbursement, indemnity or subrogation
or any other rights against the Company or any other Subsidiary of the Company
as a result of any payment by such Subsidiary under its guarantees.
SECTION 9.17 Offer to Purchase upon a Change of Control Event.
(a) Upon the occurrence of a Change of Control Event, the
Company will offer to repurchase (the "Change of
Control Purchase Offer") all Senior Notes from the
81
Holders, and each Holder will have the right to
require that the Company repurchase such Holder's
Senior Notes, at a purchase price in cash equal to
101% of the principal amount thereof (the "Change of
Control Purchase Price") plus accrued and unpaid
interest (including any Additional Interest), if any,
to the Change of Control Purchase Date (subject to
the right of Holders on the relevant Regular Record
Date to receive interest (including any Additional
Interest) due on an Interest Payment Date occurring
prior to such Change of Control Purchase Date), in
accordance with the provisions of this Section 9.17.
(b) Within 30 days following any Change of Control Event,
the Company shall mail a notice to each Holder with a
copy to the Trustee (a "Change of Control Purchase
Notice") stating:
(i) that a Change of Control Event has occurred
and that such Holder has the right to
require the Company to purchase such
Holder's Senior Notes at a Change of Control
Purchase Price in cash equal to 101% of the
principal amount thereof plus accrued and
unpaid interest (including any Additional
Interest), if any, to the Change of Control
Purchase Date (subject to the right of
Holders on the relevant Regular Record Date
to receive interest (including any
Additional Interest) on an Interest Payment
Date occurring prior to the Change of
Control Purchase Date);
(ii) the circumstances and relevant facts
regarding such Change of Control Event
(including, in the case of any merger,
consolidation or sale of all or
substantially all assets, information with
respect to pro forma results of operations,
cash flow and capitalization after giving
effect to such Change of Control Event);
(iii) the Change of Control Purchase Date (which
shall be no earlier than 30 days nor later
than 60 days from the date such Change of
Control Purchase Notice is mailed);
(iv) that, unless the Company defaults in making
such payment, any Senior Note accepted for
payment pursuant to the Change of Control
Purchase Offer shall cease to accrue
interest (including any Additional Interest)
after the Change of Control Purchase Date;
(v) that Holders electing to have a Senior Note
purchased pursuant to any Change of Control
Purchase Offer shall be required to
surrender the Senior Note, with the form
entitled "Option of Holder to Elect
Purchase" on the reverse of the Senior Note
completed, or transfer by book-entry
transfer, to the Company, a depositary, if
82
appointed by the Company, or a Paying Agent
at the address specified in the notice, at
least three Business Days before the Change
of Control Purchase Date; and
(vi) that Holders shall be entitled to withdraw
their election if the Company, the
Depositary or the Paying Agent, as the case
may be, receives, not later than the last
Business Day prior to the Change of Control
Purchase Date, a facsimile transmission or
letter setting forth the name of the Holder,
the principal amount of the Senior Note (and
identification number) the Holder delivered
for purchase and a statement that such
Holder is withdrawing his election to have
such Senior Note purchased.
(c) Holders electing to have a Senior Note purchased will
be required to surrender the Senior Note, with the
form entitled "Option of Holder to Elect Purchase"
duly completed, to the Company at the address
specified in the notice at least three Business Days
prior to the Change of Control Purchase Date. Holders
will be entitled to withdraw their election if the
Trustee or the Company receives not later than one
Business Day prior to the Change of Control Purchase
Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of
the Senior Note (and identification number) which was
delivered by the Holder for purchase by the Company
and a statement that such Holder is withdrawing his
election to have such Senior Note purchased.
(d) On the Change of Control Purchase Date, all Senior
Notes purchased by the Company in a Change of Control
Purchase Offer shall be delivered to the Trustee for
cancellation, and the Company shall pay the Change of
Control Purchase Price plus accrued and unpaid
interest (including any Additional Interest), if any,
to the Holders entitled thereto.
(e) On or before the Change of Control Purchase Date, the
Company will deliver to the Trustee an Officers'
Certificate stating that the Senior Notes purchased
in the Change of Control Purchase Offer are accepted
for payment by the Company in accordance with the
terms of this Section. The Company, the Depositary or
the Paying Agent, as the case may be, will promptly
(but in any case not later than five days after the
Change of Control Purchase Date) pay to each
tendering Holder an amount equal to the Change of
Control Purchase Price of the Senior Notes tendered
by such Holder plus interest (including any
Additional Interest) accrued thereon (subject to the
right of Holders on the relevant Regular Record Date
to receive interest (including any Additional
Interest) due on the relevant Interest Payment Date).
83
The Company will publicly announce the results of the
Change of Control Purchase Offer on the Change of
Control Purchase Date.
(f) The Company will comply, to the extent applicable,
with the requirements of Section 14(e) of the
Exchange Act and any other applicable securities laws
or regulations in connection with the repurchase of
Senior Notes pursuant to this Section 9.17. To the
extent that the provisions of any securities laws or
regulations conflict with the provisions of this
Section 9.17, the Company will comply with the
applicable securities laws and regulations and will
not be deemed to have breached its obligations under
this Section 9.17 by virtue thereof.
SECTION 9.18 Payments for Consent.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Senior Notes unless such consideration is paid to all Holders that
provide such consent or so waive or agree to amend.
SECTION 9.19 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 9.5 to 9.16, inclusive, with
respect to the Senior Notes if before the time of compliance the Holders of a
majority in principal amount of the Outstanding Senior Notes shall, by act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition 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 any such term,
provision or condition shall remain in full force and effect.
SECTION 9.20 Asset Sales
The Company shall not, and shall not permit any of its Subsidiaries
(other than the Atlas Pipeline Entities) to, consummate an Asset Sale unless the
Company (or the Subsidiary, as the case may be) receives consideration at the
time of the Asset Sale at least equal to the Fair Market Value of the assets or
Capital Stock issued or sold or otherwise disposed of.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply those Net Proceeds:
(1) to repay Indebtedness and, if the Indebtedness repaid
is revolving credit Indebtedness, to correspondingly
reduce commitments with respect thereto;
84
(2) to acquire all or substantially all of the assets of,
or a majority of the Voting Stock of, another
Permitted Business;
(3) to make a capital expenditure; or
(4) to make an investment in one or more Permitted
Businesses or to acquire other assets that are used
or useful in a Permitted Business.
Pending the final application of any Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
The amount equal to 50% of the Net Proceeds from Asset Sales that are
not applied or invested as provided above in clauses (1)-(4) shall constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0
million, the Company shall make an Asset Sale Offer to all Holders of Notes and
all holders of Pari Passu Indebtedness containing provisions similar to those
set forth herein with respect to offers to purchase or redeem with the proceeds
of sales of assets to purchase the maximum principal amount of Notes and such
Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The
offer price in any Asset Sale Offer shall be equal to 100% of principal amount
plus accrued and unpaid interest and Additional Interest, if any, to the date of
purchase, and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and the Pari Passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and the Pari Passu Indebtedness to be purchased on a pro rata basis.
Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 9.20 or Section 11.8 hereof, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under such provisions by virtue of such conflict.
The agreements governing the Company's existing Indebtedness contain,
and future agreements may contain, prohibitions of certain events, including
events that would constitute a Change of Control or an Asset Sale. In addition,
the exercise by the Holders of their right to require the Company to repurchase
the Senior Notes upon a Change of Control or an Asset Sale could cause a default
under these other agreements, even if the Change of Control or Asset Sale itself
does not, due to the financial effect of such repurchases on the Company.
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Finally, the Company's ability to pay cash to the Holders of Senior Notes upon a
repurchase may be limited by the Company's then existing financial resources.
SECTION 9.21 Additional Subsidiary Guarantees
If the Company or any of its Subsidiaries (other than the Atlas
Pipeline Entities) acquires or creates another Subsidiary (other than a
Securitization Entity or a registered broker/dealer) after the date hereof and
such Subsidiary has a Consolidated Net Worth greater than $1.0 million, then
that newly acquired or created Subsidiary shall become a Guarantor and execute a
supplemental indenture and deliver an opinion of counsel satisfactory to the
Trustee within 10 Business Days of the date on which it was acquired or created.
SECTION 9.22 Special Provisions regarding Atlas Pipeline Partners, L.P.
Notwithstanding anything in this Indenture to the contrary:
(a) Atlas Pipeline Partners, L.P. and/or Atlas Pipeline
Operating Partnership, L.P. may issue and sell such
Capital Stock or other securities or Incur such
Indebtedness as may be deemed appropriate by Atlas
Pipeline Partners, L.P. or Atlas Pipeline Operating
Partnership, L.P.; and
(b) Atlas America, Inc., Viking Resources Corporation,
Resource Energy, Inc. and their Affiliates may
discharge their obligations and perform their duties
under the Omnibus Agreement, Master Natural Gas
Gathering Agreement and, together with Atlas Pipeline
Partners GP, LLC, the Distribution Support Agreement
with respect to Atlas Pipeline Partners, L.P. and the
other transactions with Atlas Pipeline Partners,
L.P., Atlas Pipeline Operating Partnership and Atlas
Pipeline Partners GP, LLC; all as defined and more
particularly described in the registration statement
on Form S-1, registration no. 333-85193.
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ARTICLE TEN MERGER, CONSOLIDATION AND TRANSFER OF ASSETS
SECTION 10.1 Merger, Consolidation or Transfer of Assets of the Company.
The Company shall not consolidate with or merge with or into, or sell,
assign, convey, transfer, lease or otherwise dispose of, in one transaction or a
series of transactions, all or substantially all its assets to any Person,
unless: (i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the United
States of America or any state thereof or the District of Columbia and the
Successor Company (if not the Company) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the Company's obligations under the Senior
Notes and this Indenture; (ii) immediately after giving effect to such
transaction (and treating any Indebtedness that becomes an obligation of the
Successor Company or any Subsidiary as a result of such transaction as having
been Incurred by such Successor Company or such Subsidiary at the time of such
transaction), no Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving effect to such transaction, the
Successor Company would be able to incur an additional $1.00 of Indebtedness
without violating Section 9.10(a) hereof; and (iv) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, transfer, sale, assignment,
conveyance, lease or other disposition and such supplemental indenture (if any)
comply with this Indenture and all conditions precedent provided for herein
relating to such transaction have been complied with. This Section 10.1 shall
not apply to a sale, assignment, conveyance, transfer, lease or other
disposition of assets between or among the Company or any of the Guarantors.
SECTION 10.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, assignment, conveyance, transfer, lease or
other disposition of the properties and assets of the Company substantially as
an entirety in accordance with Section 10.1, the Successor Company 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 Company
herein, and in the event of any such sale, assignment, conveyance, transfer or
other disposition, the Company (which term shall for this purpose mean the
Successor Company), except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Senior Notes and may be
dissolved and liquidated.
SECTION 10.3 Senior Notes to Be Secured in Certain Events.
If, upon any such consolidation of the Company with or merger of the
Company into any other corporation, or upon any sale, assignment, conveyance,
transfer, lease or other disposition of the property of the Company
substantially as an entirety to any other Person, any property or assets of the
Company would thereupon become subject to any Lien to secure Pari Passu
Indebtedness or Junior Indebtedness, then unless such Lien could be created
pursuant to Section 9.16 without equally and ratably securing the Senior Notes,
the Company, prior to or simultaneously with such consolidation, merger, sale,
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assignment, conveyance, transfer, lease or other disposition, will, as to such
property or assets, secure the Senior Notes Outstanding (together with, if the
Company shall so determine, any other Indebtedness of the Company now existing
or hereinafter created which is not subordinate in right of payment to the
Senior Notes) equally and ratably with the Pari Passu Indebtedness or prior to
the Junior Indebtedness which upon such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition is to become secured as to such
property or assets by such Lien.
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ARTICLE ELEVEN REDEMPTION OF SENIOR NOTES
SECTION 11.1 Applicability of Article.
Any redemption of Senior Notes before their Stated Maturity shall be in
accordance with their terms and in accordance with this Article.
SECTION 11.2Optional Redemption.
The Senior Notes will not be redeemable prior to August 1, 2006, except
as provided on the reverse of the Form of Senior Note set forth in Section 2.3.
SECTION 11.3 Election to Redeem; Selection by Trustee of Senior Notes to Be
Redeemed.
Any election to redeem Senior Notes shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Senior Notes, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Senior Notes to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Senior Notes to be redeemed pursuant to this Section 11.3.
If less than all the Senior Notes are to be redeemed, the particular
Senior Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Senior Notes not previously
called for redemption, by such method as the Trustee in its sole discretion
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for Senior
Notes or any integral multiple thereof) of the principal amount of Senior Notes
of a denomination larger than the minimum authorized denomination for Senior
Notes.
The Trustee shall promptly notify the Company in writing of the Senior
Notes selected for redemption and, in the case of any Senior 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 Senior Notes shall
relate, in the case of any Senior Notes redeemed or to be redeemed only in part,
to the portion of the principal amount of such Senior Notes which has been or is
to be redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Senior Notes to be redeemed, at his address appearing in
the Senior Note Register.
All notices of redemption shall identify the Senior Notes to be
Redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
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(2) the Redemption Price and accrued interest (including
Additional Interest), if any,
(3) if less than all the Outstanding Senior Notes are to
be redeemed, the identification (and, in the case of
partial redemption of any Senior Notes, the principal
amounts) of the particular Senior Notes to be
redeemed,
(4) that on the Redemption Date the Redemption Price and
accrued interest (including Additional Interest), if
any, will become due and payable upon each such
Senior Note to be redeemed and, if applicable, that
interest (including Additional Interest) thereon will
cease to accrue on and after said date, and
(5) the place or places where such Senior Notes are to be
surrendered for payment of the Redemption Price and
accrued interest (including Additional Interest), if
any.
Notice of redemption of Senior Notes to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name and at the expense of the Company and shall be
irrevocable.
SECTION 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 9.3) an amount of
money in immediately available funds sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest (including Additional Interest) on, all the Senior Notes which are to
be redeemed on that date.
SECTION 11.6 Senior Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Senior Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, including any Additional Interest) such Senior Notes shall cease to
bear interest. Upon surrender of any such Senior Note for redemption in
accordance with said notice, such Senior Note shall be paid by the Company at
the Redemption Price, together with accrued interest (including any Additional
Interest) to the Redemption Date; provided, however, that installments of
interest whose stated maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Senior Notes, or one or more Predecessor Senior
Notes, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 3.8.
If any Senior Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, subject
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to Section 1.13 hereof, until paid, bear interest (including any Additional
Interest) from the Redemption Date at the rate prescribed therefor in the Senior
Note.
SECTION 11.7 Senior Notes Redeemed in Part.
Any Senior Note which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Senior Note
without service charge, a new Senior Note or Senior Notes of like tenor, 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 Senior Note so surrendered.
SECTION 11.8 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 9.20 hereof, the Company is
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made within five days of each date on
which the aggregate amount of Excess Proceeds exceeds $20.0 million to all
Holders and all holders of Pari Passu Indebtedness with Notes containing
provisions similar to those set forth herein with respect to offers to purchase
or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and
not more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three Business
Days after the termination of the Offer Period (the "Purchase Date"), the
Company will apply all Excess Proceeds (the "Offer Amount") to the purchase of
the Senior Notes and the Pari Passu Indebtedness (on a pro rata basis, if
applicable) or, if less than the Offer Amount has been tendered, all Senior
Notes and Pari Passu Indebtedness tendered in response to the Asset Sale Offer.
Payment for any Senior Notes so purchased will be made in the same manner as
interest payments are made.
If the Purchase Date is on or after a Regular Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest will
be paid to the Person in whose name a Senior Note is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender Senior Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice will contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:
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(1) that the Asset Sale Offer is being made pursuant to
this Section 11.8 and Section 9.20 hereof and the
length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Senior Note not tendered or accepted for
payment will continue to accrue interest;
(4) that, unless the Company defaults in making such
payment, any Senior Note accepted for payment
pursuant to the Asset Sale Offer will cease to accrue
interest after the Purchase Date;
(5) that Holders electing to have a Senior Note purchased
pursuant to an Asset Sale Offer may elect to have
Senior Notes purchased in integral multiples of
$1,000 only;
(6) that Holders electing to have a Senior Note purchased
pursuant to any Asset Sale Offer will be required to
surrender the Senior Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse
of the Senior Note completed, or transfer by
book-entry transfer, to the Company, a Depositary, if
appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days
before the Purchase Date;
(7) that Holders will be entitled to withdraw their
election if the Company, the Depositary or the Paying
Agent, as the case may be, receives, not later than
the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the
Senior Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his
election to have such Senior Note purchased;
(8) that, if the aggregate principal amount of Senior
Notes and the Pari Passu Indebtedness surrendered
exceeds the Offer Amount, the Company will select the
Senior Notes and Pari Passu Indebtedness to be
purchased on a pro rata basis based on the principal
amount of Senior Notes and the Pari Passu
Indebtedness surrendered (with such adjustments as
may be deemed appropriate by the Company so that only
Senior Notes in denominations of $1,000, or integral
multiples thereof, will be purchased); and
(9) that Holders whose Senior Notes were purchased only
in part will be issued new Senior Notes equal in
principal amount to the unpurchased portion of the
Senior Notes surrendered (or transferred by
book-entry transfer).
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On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Senior Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Senior Notes
tendered, and will deliver to the Trustee an Officers' Certificate stating that
such Senior Notes or portions thereof were accepted for payment by the Company
in accordance with the terms of this Section 11.8. The Company, the Depositary
or the Paying Agent, as the case may be, will promptly (but in any case not
later than five days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Senior Notes tendered by
such Holder and accepted by the Company for purchase, and the Company will
promptly issue a new Senior Note, and the Trustee, upon written request from the
Company will authenticate and mail or deliver such new Senior Note to such
Holder, in a principal amount equal to any unpurchased portion of the Senior
Note surrendered. Any Senior Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Asset Sale Offer on the Purchase Date.
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ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
Board Resolution, at any time, elect to have either Section 12.2 or 12.3 be
applied to all Outstanding Senior Notes upon compliance with the conditions set
forth below in this Article.
SECTION 12.2 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 12.1 hereof of the option
applicable to this Section 12.2, the Company and each of the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 12.4, be
deemed to have been discharged from its obligations with respect to all
Outstanding Senior Notes (including the Subsidiary Guarantees) on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company and each of the Guarantors
shall be deemed to have paid and discharged the entire Indebtedness represented
by the Outstanding Senior Notes, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 12.5 and the other Sections of
this Indenture referred to in (a) and (b) below, and the Company shall be deemed
to have satisfied all its other obligations under the Senior Notes, the
Subsidiary Guarantees and this Indenture (and the Trustee, on written demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
Outstanding Senior Notes to receive solely from the trust fund described in
Section 12.4, and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest (including any Additional
Interest) on such Senior Notes as and when such payments are due, (b) the
Company's obligations with respect to such Senior Notes under Sections 3.5, 3.6,
3.7, 9.2, 9.3 and 9.5, (c) the rights, powers, trusts, duties and immunities of
the Trustee and any Authenticating Agent hereunder and the Company's obligations
in connection therewith and (d) this Article. Subject to compliance with this
Article, the Company may exercise its option under this Section 12.2
notwithstanding the prior exercise of its option under Section 12.3.
SECTION 12.3 Covenant Defeasance.
Upon the Company's exercise under Section 12.1 of the option applicable
to this Section 12.3, the Company and each of the Guarantors shall, subject to
the satisfaction of the conditions set forth in Section 12.4, be released from
its obligations under the covenants contained in Article Nine (except Sections
9.1, 9.2, 9.5 and 9.7) with respect to the Outstanding Senior Notes on and after
the date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Senior Notes shall thereafter be deemed not Outstanding
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed Outstanding for all other purposes hereunder (it
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being understood that such Senior Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the Outstanding Senior Notes and Subsidiary Guarantees, the Company
and the Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 5.1, but,
except as specified above, the remainder of this Indenture and such Senior Notes
and Subsidiary Guarantees shall be unaffected thereby. SECTION 12.4 Conditions
to Legal or Covenant Defeasance.
The following shall be the conditions precedent to the effectiveness of
any Legal Defeasance or Covenant Defeasance:
(a) the Company shall (i) irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders,
unencumbered cash in United States dollars,
unencumbered U.S. Government Obligations, or a
combination thereof, in such amounts as will be
sufficient, in a written opinion of a nationally
recognized firm of independent public accountants
delivered to the Trustee, to pay the principal of,
premium, if any, and interest (including any
Additional Interest) on the outstanding Senior Notes
on the stated date for payment thereof or on the
applicable Redemption Date, as the case may be, and
the Company must specify whether the Senior Notes are
being defeased to maturity or to a particular
Redemption Date, and (ii) irrevocably instruct the
Trustee to apply such cash and U.S. Government
Obligations to such payments with respect to the
Senior Notes;
(b) in the case of an election under Section 12.2, the
Company shall have delivered to the Trustee an
Opinion of Counsel in the United States confirming
that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income
tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that,
the Holders of the Outstanding Senior Notes will not
recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same
amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 12.3 hereof,
the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States confirming
that the Holders of the Outstanding Senior Notes will
not recognize income, gain or loss for federal income
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tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance
has not occurred;
(d) no Default or Event of Default shall have occurred
and be continuing (i) on the date of such deposit
(other than a Default or Event of Default resulting
from the Incurrence of Indebtedness all or a portion
of the proceeds of which will be used to defease the
Senior Notes pursuant to this Article concurrently
with such Incurrence) and (ii) insofar as Section
5.1(f) hereof is concerned, at any time during the
period ending on the 91st day after the date of
deposit (such condition not being satisfied until
such 91st day);
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute
a default under, any material agreement or instrument
(other than this Indenture) to which the Company or
any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that on the 91st day
following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was
not made by the Company with the intent of preferring
the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 12.5 Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 12.6, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section
12.4 in respect of the Outstanding Senior Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Senior Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(excluding the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Senior Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest (including any Additional
Interest), but such money need not be segregated from other funds except to the
extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 12.4 or the principal and interest
received in respect thereof.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the written request
of the Company any money or U.S. Government Obligations held by it as provided
in Section 12.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
12.4), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 12.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or U.S.
Government Obligations in accordance with Section 12.2 or 12.3, as the case may
be, by reason of any order or judgment of any court or Governmental Authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and each Guarantor's obligations under this Indenture and the Senior
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 12.2 or 12.3 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 12.2 or 12.3, as
the case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest (including any Additional Interest)
on any Senior Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Senior Notes to receive
such payment from the money held by the Trustee or Paying Agent.
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ARTICLE THIRTEEN NOTE GUARANTEES
SECTION 13.1 Guarantee.
(a) Subject to this Article 13, each of the Guarantors
hereby, jointly and severally, unconditionally
guarantees to each Holder of a Senior Note
authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture,
the Senior Notes or the obligations of the Company
hereunder or thereunder, that:
(1) the principal of and interest on the Senior
Notes will be promptly paid in full when
due, and Additional Interest, if any, and
all other obligations of the Company to the
Holders or the Trustee hereunder or
thereunder will be promptly paid in full or
performed, all in accordance with the terms
hereof and thereof; and
(2) in case of any extension of time of payment
or renewal of any Senior Notes or any of
such other obligations, that same will be
promptly paid in full when due or performed
in accordance with the terms of the
extension or renewal.
Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason,
the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor
agrees that this is a guarantee of payment and not a
guarantee of collection.
(b) The Guarantors hereby agree that their obligations
hereunder are unconditional, irrespective of the
validity, regularity or enforceability of the Senior
Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any
action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor
hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company,
protest, notice and all demands whatsoever and
covenant that this Subsidiary Guarantee will not be
discharged except by complete performance of the
obligations contained in the Senior Notes and this
Indenture.
(c) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors
or any custodian, trustee, liquidator or other
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similar official acting in relation to either the
Company or the Guarantors, any amount paid by either
to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, will
be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to
any right of subrogation in relation to the Holders
in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as
provided in Article 5 hereof for the purposes of this
Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed
hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in
Article 5 hereof, such obligations (whether or not
due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this
Subsidiary Guarantee. The Guarantors will have the
right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the
Subsidiary Guarantee.
SECTION 13.2 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Senior Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of bankruptcy law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to the maximum amount
that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 13, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
SECTION 13.3 Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 13.1, each
Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the following form will be endorsed by an officer of such
Guarantor on each Senior Note authenticated and delivered by the Trustee and
that this Indenture will be executed on behalf of such Guarantor by one of its
officers.
99
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of __________, 2003 among Resource America,
Inc., the Guarantors and The Bank of New York, as trustee (a) the due and
punctual payment of the principal of and interest on the Senior Notes (as
defined in the Indenture), the due and punctual payment of Additional Interest,
if any, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms of the
Indenture and (b) in case of any extension of time of payment or renewal of any
Senior Notes or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration or otherwise. The
obligations of the Guarantors to the Holders and to the Trustee pursuant to the
Subsidiary Guarantee and the Indenture are expressly set forth in Article 13 of
the Indenture and reference is hereby made to the Indenture for the precise
terms of the Subsidiary Guarantee. Each Holder of a Senior Note, by accepting
the same, agrees to and shall be bound by such provisions.
[NAME OF GUARANTOR(S)]
By:
---------------------------------
Name:
Title:
Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in
Section 13.1 will remain in full force and effect notwithstanding any failure to
endorse on each Senior Note a notation of such Subsidiary Guarantee.
If an officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Senior Note on which a Subsidiary Guarantee is endorsed, the Subsidiary
Guarantee will be valid nevertheless.
The delivery of any Senior Note by the Trustee, after the
authentication thereof hereunder, will constitute due delivery of the Subsidiary
Guarantee set forth in this Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any Subsidiary after
the date of this Indenture, if required by Section 9.21 hereof, the Company will
cause such Subsidiary to comply with the provisions of Section 9.21 hereof and
this Article 13, to the extent applicable.
100
SECTION 13.4 Guarantors May Consolidate, etc., on Certain Terms
Except as otherwise provided in Section 13.5, no Guarantor may sell or
otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person) another Person, other than the Company or another Guarantor, unless:
(1) immediately after giving effect to such transaction,
no Default or Event of Default exists; and
(2) either:
(a) subject to Section 13.5 hereof, the Person
acquiring the property in any such sale or
disposition or the Person formed by or
surviving any such consolidation or merger
unconditionally assumes all the obligations
of that Guarantor, pursuant to a
supplemental indenture in form and substance
reasonably satisfactory to the Trustee,
under this Indenture and the Subsidiary
Guarantee on the terms set forth herein or
therein; and
(b) the Net Proceeds of such sale or other
disposition are applied in accordance
Section 9.20 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Senior Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.
Notwithstanding the foregoing, nothing contained in this Indenture or
in any of the Senior Notes will prevent any consolidation or merger of a
Guarantor with or into the Company or another Guarantor, or will prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
SECTION 13.5 Releases Following Sale of Assets.
In the event of any sale or other disposition of all or substantially
all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any
Guarantor, in each case to a Person that is not (either before or after giving
effect to such transactions) a Subsidiary of the Company, then such Guarantor
(in the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation
101
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Subsidiary Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with
Section 9.20 hereof. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including Section 9.20 hereof, the Trustee will execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Subsidiary Guarantee.
Any Guarantor not released from its obligations under its Subsidiary
Guarantee will remain liable for the full amount of principal of and interest on
the Senior Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 13.
102
ARTICLE FOURTEEN MISCELLANEOUS
SECTION 14.1. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability for any obligations of the Company
under the Senior Notes or this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each Holder by accepting
a Senior Note waives and releases all such liability.
SECTION 14.2. Execution in Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
* * * * *
103
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
RESOURCE AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman of the Board of Directors,
Chief Executive Officer and President
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Treasurer
[GUARANTORS' SIGNATURES APPEAR ON FOLLOWING PAGES]
S-1
ATLAS ENERGY HOLDINGS, INC. ATLAS AMERICA, INC., a Delaware
Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -------------------------
Vice President and Treasurer ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President and Secretary
ATLAS AMERICA, INC., a Pennsylvania AIC, INC.
Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -------------------------
--------------------------------- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Senior Vice President
Senior Vice President and Secretary
ATLAS ENERGY CORPORATION
ATLAS ENERGY GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ --------------------------
---------------------------------- ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Secretary
Senior Vice President and Secretary
ATLAS RESOURCES, INC.
AED INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ --------------------------
----------------------------------- ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Treasurer and Senior Vice President and Secretary
Secretary
ARD INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Treasurer and Secretary
S-2
PENNSYLVANIA INDUSTRIAL ENERGY, INC. ATLAS INFORMATION MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: AIC, Inc., its sole member
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Secretary By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
RESOURCE ENERGY, INC. REI-NY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- --------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Secretary Vice President and Assistant Secretary
RESOURCE WELL SERVICES, INC. VIKING RESOURCES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- -------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President and Secretary
RFI HOLDING COMPANY, INC. VIKING INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------- -------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Treasurer and Vice President, Treasurer and Secretary
Secretary
ATLAS NOBLE CORP. RESOURCE FINANCIAL
FUND MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------- ------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Secretary Vice President and Treasurer
RAI VENTURES, INC. RESOURCE CAPITAL PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- ---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and Secretary President
S-3
RESOURCE LEASING, INC. FLI HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------ ----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President President
LEAF FINANCIAL CORP. LEAF CAPITAL MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------- -----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
President and Chief Operating Officer Vice President - Operations and Secretary
LEAF FUNDING, INC. LEAF ASSET MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
President and Chief Operating Officer President and Chief Executive Officer
RESOURCE REAL ESTATE HOLDINGS, INC. RESOURCE PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Treasurer President
RESOURCE PROPERTIES II, INC. RESOURCES PROPERTIES IV, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------- -----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES VI, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
S-4
RESOURCE PROPERTIES VIII, INC. RESOURCE PROPERTIES XII, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XIV, INC. RESOURCE PROPERTIES XV, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XVII, INC. RESOURCE PROPERTIES XVIII, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XX, INC. RESOURCE PROPERTIES XXII, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XXIII, INC. RESOURCE PROPERTIES XXIV, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XXV, INC. RESOURCE PROPERTIES XXVI, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XXVII, INC. RESOURCE PROPERTIES XXVIII, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
S-5
RESOURCE PROPERTIES XXIX, INC. RESOURCE PROPERTIES XXX, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XXXI, INC. RESOURCE PROPERTIES XXXII, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XXXIII, INC. RESOURCE PROPERTIES XXXIV, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XXXV, INC. RESOURCE PROPERTIES XXXVI, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XXXVIII, INC. RESOURCE PROPERTIES XL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XLI, INC. RESOURCE PROPERTIES XLII, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
S-6
RESOURCE PROPERTIES XLIV, INC. RESOURCE PROPERTIES XLVI, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES XLVII, INC. RESOURCE PROPERTIES XLIX, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES 50, INC. RESOURCE PROPERTIES 51, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES 52, INC. RESOURCE PROPERTIES 53, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE PROPERTIES 54, INC. CP/GP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
CHESTERFIELD MORTGAGE INVESTORS, INC. ES GP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
S-7
RAI FINANCIAL, INC. RESOURCE COMMERCIAL MORTGAGES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE FINANCIAL SERVICES, INC. RESOURCE HOUSING INVESTORS I, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President
RESOURCE HOUSING INVESTORS II, INC. RESOURCE HOUSING INVESTORS III, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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President President
RESOURCE HOUSING INVESTORS IV, INC. RESOURCE PROGRAMS, INC.
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President President
RESOURCE ▇▇▇▇▇▇▇▇▇▇▇, INC. WS MORTGAGE ACQUISITION CORPORATION
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President President
RCP NITTANY POINTE MANAGER, INC. RCP CHINOE CREEK MANAGER, INC.
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President President
S-8